0001047469-11-002747.txt : 20110328 0001047469-11-002747.hdr.sgml : 20110328 20110328163726 ACCESSION NUMBER: 0001047469-11-002747 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 396 FILED AS OF DATE: 20110328 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Club Operations, Inc. CENTRAL INDEX KEY: 0001515382 IRS NUMBER: 273894784 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127 FILM NUMBER: 11716009 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp TTC, LLC CENTRAL INDEX KEY: 0001515419 IRS NUMBER: 272491368 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-109 FILM NUMBER: 11716064 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Turkey Creek Golf Club, Inc. CENTRAL INDEX KEY: 0001515420 IRS NUMBER: 752789352 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-108 FILM NUMBER: 11716062 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp USA, Inc. CENTRAL INDEX KEY: 0001515421 IRS NUMBER: 752114856 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-107 FILM NUMBER: 11716061 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Willow Creek, LLC CENTRAL INDEX KEY: 0001515422 IRS NUMBER: 275160270 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-106 FILM NUMBER: 11716060 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Wind Watch, LLC CENTRAL INDEX KEY: 0001515423 IRS NUMBER: 275160463 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-105 FILM NUMBER: 11716059 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Columbia Capital City Club Corp. CENTRAL INDEX KEY: 0001515424 IRS NUMBER: 752427265 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-104 FILM NUMBER: 11716058 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Columbia Tower Club, Inc. CENTRAL INDEX KEY: 0001515425 IRS NUMBER: 752014780 STATE OF INCORPORATION: WA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-124 FILM NUMBER: 11716080 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Countryside Country Club, Inc. CENTRAL INDEX KEY: 0001515426 IRS NUMBER: 751560231 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-102 FILM NUMBER: 11716056 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Currituck Golf, LLC CENTRAL INDEX KEY: 0001515427 IRS NUMBER: 273094230 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-101 FILM NUMBER: 11716055 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Dallas Tower Club, Inc. CENTRAL INDEX KEY: 0001515428 IRS NUMBER: 752044758 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-100 FILM NUMBER: 11716054 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Dayton Racquet Club, Inc. CENTRAL INDEX KEY: 0001515429 IRS NUMBER: 751315276 STATE OF INCORPORATION: OH FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-98 FILM NUMBER: 11716053 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DeBary Management Corp. CENTRAL INDEX KEY: 0001515430 IRS NUMBER: 752756690 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-97 FILM NUMBER: 11716052 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Diamante' Golf Club Management, Inc. CENTRAL INDEX KEY: 0001515431 IRS NUMBER: 752541981 STATE OF INCORPORATION: AR FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-96 FILM NUMBER: 11716051 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Diamante' Golf Club Partners, Inc. CENTRAL INDEX KEY: 0001515432 IRS NUMBER: 752541980 STATE OF INCORPORATION: AR FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-95 FILM NUMBER: 11716050 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Diamond Run Club, Inc. CENTRAL INDEX KEY: 0001515433 IRS NUMBER: 752793869 STATE OF INCORPORATION: PA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-94 FILM NUMBER: 11716049 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Empire Ranch, LLC CENTRAL INDEX KEY: 0001515435 IRS NUMBER: 752955822 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-93 FILM NUMBER: 11716046 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Fair Oaks Club Corp. CENTRAL INDEX KEY: 0001515436 IRS NUMBER: 752135345 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-92 FILM NUMBER: 11716045 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Farms of New Kent Management, LLC CENTRAL INDEX KEY: 0001515438 IRS NUMBER: 262238822 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-91 FILM NUMBER: 11716044 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FFFC Golf Acquisitions, L.L.C. CENTRAL INDEX KEY: 0001515439 IRS NUMBER: 752114856 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-90 FILM NUMBER: 11716043 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: First City Club Management, Inc. CENTRAL INDEX KEY: 0001515440 IRS NUMBER: 751970473 STATE OF INCORPORATION: GA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-89 FILM NUMBER: 11716041 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Fort Bend Acquisition Corp. CENTRAL INDEX KEY: 0001515441 IRS NUMBER: 752471088 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-88 FILM NUMBER: 11716039 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GCC Asset Management, Inc. CENTRAL INDEX KEY: 0001515442 IRS NUMBER: 752382807 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-87 FILM NUMBER: 11716038 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Glendale Management Corp. CENTRAL INDEX KEY: 0001515443 IRS NUMBER: 751973978 STATE OF INCORPORATION: WI FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-86 FILM NUMBER: 11716037 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Glendale Racquet Club, Inc. CENTRAL INDEX KEY: 0001515444 IRS NUMBER: 391147563 STATE OF INCORPORATION: WI FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-85 FILM NUMBER: 11716036 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GP Bear's Best Atlanta, Inc. CENTRAL INDEX KEY: 0001515445 IRS NUMBER: 752824663 STATE OF INCORPORATION: GA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-84 FILM NUMBER: 11716035 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GRanch Golf Club, Inc. CENTRAL INDEX KEY: 0001515446 IRS NUMBER: 752594364 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-82 FILM NUMBER: 11716033 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Greenbrier Country Club, Inc. CENTRAL INDEX KEY: 0001515447 IRS NUMBER: 752166235 STATE OF INCORPORATION: VA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-103 FILM NUMBER: 11716057 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Greenspoint Club, Inc. CENTRAL INDEX KEY: 0001515448 IRS NUMBER: 751788013 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-81 FILM NUMBER: 11716032 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hackberry Creek Country Club, Inc. CENTRAL INDEX KEY: 0001515449 IRS NUMBER: 751836955 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-80 FILM NUMBER: 11716031 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Haile Plantation Management Corp. CENTRAL INDEX KEY: 0001515450 IRS NUMBER: 752587862 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-79 FILM NUMBER: 11716030 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Harbour Club of Charleston, Inc. CENTRAL INDEX KEY: 0001515451 IRS NUMBER: 752481681 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-78 FILM NUMBER: 11716029 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hearthstone Country Club, Inc. CENTRAL INDEX KEY: 0001515452 IRS NUMBER: 751560896 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-77 FILM NUMBER: 11716028 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hill Country Golf, Inc. CENTRAL INDEX KEY: 0001515453 IRS NUMBER: 751467720 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-76 FILM NUMBER: 11716027 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hills II of Lakeway, Inc. CENTRAL INDEX KEY: 0001515454 IRS NUMBER: 752839814 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-75 FILM NUMBER: 11716026 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Houston City Club, Inc. CENTRAL INDEX KEY: 0001515455 IRS NUMBER: 751613884 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-74 FILM NUMBER: 11716025 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HPG, L.C. CENTRAL INDEX KEY: 0001515456 IRS NUMBER: 593159082 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-73 FILM NUMBER: 11716024 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hunter's Green Acquisition Corp. CENTRAL INDEX KEY: 0001515457 IRS NUMBER: 752623675 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-72 FILM NUMBER: 11716023 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Indigo Run Asset Corp. CENTRAL INDEX KEY: 0001515458 IRS NUMBER: 752626876 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-71 FILM NUMBER: 11716022 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Irving Club Acquisition Corp. CENTRAL INDEX KEY: 0001515459 IRS NUMBER: 752433335 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-70 FILM NUMBER: 11716021 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Canyon Crest Country Club, Inc. CENTRAL INDEX KEY: 0001515460 IRS NUMBER: 952494912 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-140 FILM NUMBER: 11716097 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Kingwood Country Club, Inc. CENTRAL INDEX KEY: 0001515461 IRS NUMBER: 751384721 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-69 FILM NUMBER: 11716019 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Knollwood Country Club, Inc. CENTRAL INDEX KEY: 0001515462 IRS NUMBER: 751860187 STATE OF INCORPORATION: IN FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-68 FILM NUMBER: 11716017 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: La Cima Club, Inc. CENTRAL INDEX KEY: 0001515463 IRS NUMBER: 751945200 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-67 FILM NUMBER: 11716015 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Center Club, Inc. CENTRAL INDEX KEY: 0001515464 IRS NUMBER: 751836936 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-139 FILM NUMBER: 11716096 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Lakeway Clubs, Inc. CENTRAL INDEX KEY: 0001515465 IRS NUMBER: 742751365 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-66 FILM NUMBER: 11716014 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Laurel Springs Holdco, LLC CENTRAL INDEX KEY: 0001515466 IRS NUMBER: 275160857 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-65 FILM NUMBER: 11716013 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Coto Property Holdings, Inc. CENTRAL INDEX KEY: 0001515467 IRS NUMBER: 752572520 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-138 FILM NUMBER: 11716095 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LionsGate Golf Club, Inc. CENTRAL INDEX KEY: 0001515468 IRS NUMBER: 752810637 STATE OF INCORPORATION: KS FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-64 FILM NUMBER: 11716012 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAC Club, LLC CENTRAL INDEX KEY: 0001515469 IRS NUMBER: 300390557 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-63 FILM NUMBER: 11716011 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Crow Canyon Management Corp. CENTRAL INDEX KEY: 0001515470 IRS NUMBER: 751730343 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-137 FILM NUMBER: 11716094 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Management Co for Eagle Ridge & ThePreserve CENTRAL INDEX KEY: 0001515471 IRS NUMBER: 752420359 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-62 FILM NUMBER: 11716010 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Manager for CCHH, Inc. CENTRAL INDEX KEY: 0001515472 IRS NUMBER: 752558851 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-61 FILM NUMBER: 11716008 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Desert Falls Country Club, Inc. CENTRAL INDEX KEY: 0001515473 IRS NUMBER: 752501440 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-136 FILM NUMBER: 11716093 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Master Club, Inc. CENTRAL INDEX KEY: 0001515474 IRS NUMBER: 752803822 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-60 FILM NUMBER: 11716007 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Financial Management Co CENTRAL INDEX KEY: 0001515475 IRS NUMBER: 752408217 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-135 FILM NUMBER: 11716092 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Memorial Stadium Club Management Corp. CENTRAL INDEX KEY: 0001515476 IRS NUMBER: 752772291 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-59 FILM NUMBER: 11716006 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Memphis City Club, Inc. CENTRAL INDEX KEY: 0001515477 IRS NUMBER: 752187471 STATE OF INCORPORATION: TN FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-58 FILM NUMBER: 11716004 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp GCL Corp CENTRAL INDEX KEY: 0001515478 IRS NUMBER: 752693309 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-134 FILM NUMBER: 11716091 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MH Villas, Inc. CENTRAL INDEX KEY: 0001515479 IRS NUMBER: 752656914 STATE OF INCORPORATION: CA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-57 FILM NUMBER: 11716003 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Gen Par of Texas, L.L.C. CENTRAL INDEX KEY: 0001515480 IRS NUMBER: 752810007 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-133 FILM NUMBER: 11716090 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Golf of California, L.L.C. CENTRAL INDEX KEY: 0001515481 IRS NUMBER: 742910563 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-132 FILM NUMBER: 11716089 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Golf of Florida, L.L.C. CENTRAL INDEX KEY: 0001515482 IRS NUMBER: 742910562 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-131 FILM NUMBER: 11716087 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Golf of Georgia, L.P. CENTRAL INDEX KEY: 0001515483 IRS NUMBER: 752807677 STATE OF INCORPORATION: GA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-130 FILM NUMBER: 11716086 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Golf of North Carolina, L.L.C. CENTRAL INDEX KEY: 0001515484 IRS NUMBER: 742910564 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-129 FILM NUMBER: 11716085 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Golf of Texas, L.P. CENTRAL INDEX KEY: 0001515485 IRS NUMBER: 752807428 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-128 FILM NUMBER: 11716084 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Granite Bay Management, Inc. CENTRAL INDEX KEY: 0001515486 IRS NUMBER: 680268581 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-127 FILM NUMBER: 11716083 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Graphics, Inc. CENTRAL INDEX KEY: 0001515487 IRS NUMBER: 752570324 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-126 FILM NUMBER: 11716082 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Hamlet, LLC CENTRAL INDEX KEY: 0001515488 IRS NUMBER: 275160613 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-125 FILM NUMBER: 11716081 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp International, Inc. CENTRAL INDEX KEY: 0001515490 IRS NUMBER: 752182069 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-123 FILM NUMBER: 11716079 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp IW Golf Club, Inc. CENTRAL INDEX KEY: 0001515491 IRS NUMBER: 752536737 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-122 FILM NUMBER: 11716078 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Management Co for Stone Creek, LLC CENTRAL INDEX KEY: 0001515492 IRS NUMBER: 261387499 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-121 FILM NUMBER: 11716077 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Mexico, Inc. CENTRAL INDEX KEY: 0001515494 IRS NUMBER: 752658417 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-120 FILM NUMBER: 11716076 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Mezzanine Borrower, LLC CENTRAL INDEX KEY: 0001515495 IRS NUMBER: 205997636 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-119 FILM NUMBER: 11716075 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Mission Hills Country Club, Inc. CENTRAL INDEX KEY: 0001515496 IRS NUMBER: 752502965 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-118 FILM NUMBER: 11716074 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Mortgage Borrower, LLC CENTRAL INDEX KEY: 0001515497 IRS NUMBER: 205997707 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-117 FILM NUMBER: 11716073 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Porter Valley Country Club, Inc. CENTRAL INDEX KEY: 0001515498 IRS NUMBER: 952487346 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-116 FILM NUMBER: 11716072 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Publications, Inc. CENTRAL INDEX KEY: 0001515499 IRS NUMBER: 751825377 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-115 FILM NUMBER: 11716071 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp San Jose Club, Inc. CENTRAL INDEX KEY: 0001515500 IRS NUMBER: 752670415 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-114 FILM NUMBER: 11716070 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Shadow Ridge Golf Club, Inc. CENTRAL INDEX KEY: 0001515501 IRS NUMBER: 751686724 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-113 FILM NUMBER: 11716069 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Spring Valley Lake Country Club, Inc. CENTRAL INDEX KEY: 0001515502 IRS NUMBER: 751473014 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-112 FILM NUMBER: 11716068 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Symphony Towers Club, Inc. CENTRAL INDEX KEY: 0001515503 IRS NUMBER: 752061871 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-111 FILM NUMBER: 11716067 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Teal Bend Golf Club, Inc. CENTRAL INDEX KEY: 0001515504 IRS NUMBER: 752649978 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-110 FILM NUMBER: 11716066 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Buying Services, Inc. CENTRAL INDEX KEY: 0001515506 IRS NUMBER: 752932004 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-141 FILM NUMBER: 11716098 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Bunker Hill Club, Inc. CENTRAL INDEX KEY: 0001515507 IRS NUMBER: 752200418 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-142 FILM NUMBER: 11716099 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Braemar Country Club, Inc. CENTRAL INDEX KEY: 0001515508 IRS NUMBER: 952040525 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-143 FILM NUMBER: 11716100 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Aven Holdings, Inc. CENTRAL INDEX KEY: 0001515509 IRS NUMBER: 752933420 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-144 FILM NUMBER: 11716101 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Asia Investments Inc. CENTRAL INDEX KEY: 0001515510 IRS NUMBER: 752538528 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-145 FILM NUMBER: 11716103 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Aliso Viejo Holding Corp. CENTRAL INDEX KEY: 0001515511 IRS NUMBER: 752671651 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-146 FILM NUMBER: 11716105 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp - Asia CENTRAL INDEX KEY: 0001515513 IRS NUMBER: 752376497 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-148 FILM NUMBER: 11716107 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Club Le Conte, Inc. CENTRAL INDEX KEY: 0001515514 IRS NUMBER: 751597579 STATE OF INCORPORATION: TN FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-149 FILM NUMBER: 11716108 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Club at Boston College, Inc. CENTRAL INDEX KEY: 0001515515 IRS NUMBER: 752710023 STATE OF INCORPORATION: MA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-150 FILM NUMBER: 11716109 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: City Club of Washington, Inc. CENTRAL INDEX KEY: 0001515516 IRS NUMBER: 752061765 STATE OF INCORPORATION: DC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-151 FILM NUMBER: 11716110 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Citrus Club, Inc. CENTRAL INDEX KEY: 0001515517 IRS NUMBER: 751322645 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-152 FILM NUMBER: 11716111 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Centre Club, Inc. CENTRAL INDEX KEY: 0001515518 IRS NUMBER: 751843838 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-153 FILM NUMBER: 11716112 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CCA Mezzanine Holdco, LLC CENTRAL INDEX KEY: 0001515519 IRS NUMBER: 205997962 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-154 FILM NUMBER: 11716113 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CCA Golf Course Holdco, LLC CENTRAL INDEX KEY: 0001515520 IRS NUMBER: 205997878 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-155 FILM NUMBER: 11716114 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Capital City Club of Raleigh, Inc. CENTRAL INDEX KEY: 0001515521 IRS NUMBER: 751551311 STATE OF INCORPORATION: NC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-156 FILM NUMBER: 11716115 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Capital City Club of Montgomery, Inc. CENTRAL INDEX KEY: 0001515522 IRS NUMBER: 751547992 STATE OF INCORPORATION: AL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-157 FILM NUMBER: 11716116 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Brookhaven Country Club, Inc. CENTRAL INDEX KEY: 0001515523 IRS NUMBER: 750976558 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-159 FILM NUMBER: 11716118 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Bluegrass Club, LLC CENTRAL INDEX KEY: 0001515524 IRS NUMBER: 320167856 STATE OF INCORPORATION: TN FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-160 FILM NUMBER: 11716119 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Bay Oaks Country Club, Inc. CENTRAL INDEX KEY: 0001515525 IRS NUMBER: 752356613 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-161 FILM NUMBER: 11716120 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Barton Creek Resort & Clubs, Inc. CENTRAL INDEX KEY: 0001515526 IRS NUMBER: 752406688 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-162 FILM NUMBER: 11716121 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AZ Club, LLC CENTRAL INDEX KEY: 0001515527 IRS NUMBER: 261385452 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-163 FILM NUMBER: 11716122 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Athletic Club at the Equitable Center, Inc. CENTRAL INDEX KEY: 0001515528 IRS NUMBER: 752104208 STATE OF INCORPORATION: NY FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-164 FILM NUMBER: 11716123 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Aspen Glen Golf Club Management Co CENTRAL INDEX KEY: 0001515529 IRS NUMBER: 752710967 STATE OF INCORPORATION: CO FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-165 FILM NUMBER: 11716124 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: APRIL SOUND MANAGEMENT CORP. CENTRAL INDEX KEY: 0001515530 IRS NUMBER: 751656690 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-166 FILM NUMBER: 11716125 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANTHEM GOLF, LLC CENTRAL INDEX KEY: 0001515531 IRS NUMBER: 383739361 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-167 FILM NUMBER: 11716126 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALISO VIEJO GOLF CLUB JOINT VENTURE CENTRAL INDEX KEY: 0001515532 IRS NUMBER: 330760752 STATE OF INCORPORATION: CA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-168 FILM NUMBER: 11716127 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ClubCorp Airways Golf, Inc. CENTRAL INDEX KEY: 0001515533 IRS NUMBER: 752149806 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-147 FILM NUMBER: 11716106 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AKRON MANAGEMENT CORP. CENTRAL INDEX KEY: 0001515534 IRS NUMBER: 751744518 STATE OF INCORPORATION: OH FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-169 FILM NUMBER: 11716128 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: 191 CC Operating Co., LLC CENTRAL INDEX KEY: 0001515535 IRS NUMBER: 272164436 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-170 FILM NUMBER: 11716129 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: 191 Athletic Club Management Company, LLC CENTRAL INDEX KEY: 0001515536 IRS NUMBER: 264052367 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-171 FILM NUMBER: 11716130 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Monarch EP Management Corp. CENTRAL INDEX KEY: 0001515537 IRS NUMBER: 752569192 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-56 FILM NUMBER: 11716002 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Nashville Club Management, Inc. CENTRAL INDEX KEY: 0001515538 IRS NUMBER: 751973979 STATE OF INCORPORATION: TN FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-55 FILM NUMBER: 11716001 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: New England Country Club Management, Inc. CENTRAL INDEX KEY: 0001515539 IRS NUMBER: 752481683 STATE OF INCORPORATION: MA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-54 FILM NUMBER: 11716000 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Northwood Management Corp. CENTRAL INDEX KEY: 0001515540 IRS NUMBER: 751617671 STATE OF INCORPORATION: GA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-53 FILM NUMBER: 11715999 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Oak Pointe Country Club, Inc. CENTRAL INDEX KEY: 0001515541 IRS NUMBER: 752413363 STATE OF INCORPORATION: MI FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-52 FILM NUMBER: 11715997 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Oakmont Management Corp. CENTRAL INDEX KEY: 0001515542 IRS NUMBER: 752457729 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-51 FILM NUMBER: 11715996 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Operations Co for Homestead, Inc. CENTRAL INDEX KEY: 0001515543 IRS NUMBER: 752515916 STATE OF INCORPORATION: VA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-50 FILM NUMBER: 11715995 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Owner's Club of South Carolina, L.L.C. CENTRAL INDEX KEY: 0001515544 IRS NUMBER: 752584737 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-20 FILM NUMBER: 11715963 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Owner's Club, Inc. CENTRAL INDEX KEY: 0001515545 IRS NUMBER: 752608736 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-22 FILM NUMBER: 11715965 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Owners Club Asset Co CENTRAL INDEX KEY: 0001515546 IRS NUMBER: 752756700 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-49 FILM NUMBER: 11715992 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Owners Club at Hilton Head, L.P. CENTRAL INDEX KEY: 0001515547 IRS NUMBER: 752584943 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-21 FILM NUMBER: 11715964 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Piedmont Club, Inc. CENTRAL INDEX KEY: 0001515548 IRS NUMBER: 752070602 STATE OF INCORPORATION: NC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-48 FILM NUMBER: 11715991 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Piedmont Golfers' Club LLC CENTRAL INDEX KEY: 0001515549 IRS NUMBER: 752114856 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-47 FILM NUMBER: 11715990 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Pyramid Club Management, Inc. CENTRAL INDEX KEY: 0001515550 IRS NUMBER: 752376505 STATE OF INCORPORATION: PA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-46 FILM NUMBER: 11715989 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Quail Hollow Management, Inc. CENTRAL INDEX KEY: 0001515551 IRS NUMBER: 751904889 STATE OF INCORPORATION: OH FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-45 FILM NUMBER: 11715988 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Queens Harbour Corp CENTRAL INDEX KEY: 0001515552 IRS NUMBER: 752509681 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-44 FILM NUMBER: 11715987 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Renaissance Club, Inc. CENTRAL INDEX KEY: 0001515553 IRS NUMBER: 751531680 STATE OF INCORPORATION: MI FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-43 FILM NUMBER: 11715986 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Richardson Country Club Corp. CENTRAL INDEX KEY: 0001515554 IRS NUMBER: 751335506 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-42 FILM NUMBER: 11715985 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: River Creek Country Club, Inc. CENTRAL INDEX KEY: 0001515555 IRS NUMBER: 752627677 STATE OF INCORPORATION: VA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-41 FILM NUMBER: 11715984 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Rivers Club, Inc. CENTRAL INDEX KEY: 0001515556 IRS NUMBER: 751781096 STATE OF INCORPORATION: PA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-40 FILM NUMBER: 11715983 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Shady Valley Management Corp. CENTRAL INDEX KEY: 0001515557 IRS NUMBER: 752406228 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-39 FILM NUMBER: 11715982 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Shoreby Club Management, Inc. CENTRAL INDEX KEY: 0001515558 IRS NUMBER: 752266610 STATE OF INCORPORATION: OH FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-38 FILM NUMBER: 11715981 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Silver Lake Management Corp. CENTRAL INDEX KEY: 0001515559 IRS NUMBER: 752283521 STATE OF INCORPORATION: OH FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-37 FILM NUMBER: 11715980 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Skyline Club, Inc. CENTRAL INDEX KEY: 0001515560 IRS NUMBER: 751728926 STATE OF INCORPORATION: IN FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-36 FILM NUMBER: 11715979 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Society Management, Inc. CENTRAL INDEX KEY: 0001515561 IRS NUMBER: 752644439 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-35 FILM NUMBER: 11715978 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Southern Trace Country Club of Shreveport, Inc. CENTRAL INDEX KEY: 0001515562 IRS NUMBER: 752381261 STATE OF INCORPORATION: LA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-34 FILM NUMBER: 11715977 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Stonehenge Club, Inc. CENTRAL INDEX KEY: 0001515563 IRS NUMBER: 752587252 STATE OF INCORPORATION: VA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-32 FILM NUMBER: 11715975 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Stonebriar Management Corp. CENTRAL INDEX KEY: 0001515564 IRS NUMBER: 752526115 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-33 FILM NUMBER: 11715976 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Summit Club, Inc. CENTRAL INDEX KEY: 0001515565 IRS NUMBER: 752277008 STATE OF INCORPORATION: AL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-18 FILM NUMBER: 11715961 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Tampa Palms Club, Inc. CENTRAL INDEX KEY: 0001515566 IRS NUMBER: 752457726 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-31 FILM NUMBER: 11715974 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: 191 Club, Inc. CENTRAL INDEX KEY: 0001515567 IRS NUMBER: 752351711 STATE OF INCORPORATION: GA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-30 FILM NUMBER: 11715973 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Buckhead Club, Inc. CENTRAL INDEX KEY: 0001515568 IRS NUMBER: 752108173 STATE OF INCORPORATION: GA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-29 FILM NUMBER: 11715972 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Club at Cimarron, Inc. CENTRAL INDEX KEY: 0001515569 IRS NUMBER: 752345619 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-28 FILM NUMBER: 11715971 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Club at Society Center, Inc. CENTRAL INDEX KEY: 0001515570 IRS NUMBER: 752303794 STATE OF INCORPORATION: OH FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-27 FILM NUMBER: 11715970 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Commerce Club, Inc. CENTRAL INDEX KEY: 0001515572 IRS NUMBER: 751870073 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-26 FILM NUMBER: 11715969 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Downtown Club, Inc. CENTRAL INDEX KEY: 0001515573 IRS NUMBER: 751476400 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-25 FILM NUMBER: 11715968 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Manager of the Owner's Club, Inc. CENTRAL INDEX KEY: 0001515574 IRS NUMBER: 752584733 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-24 FILM NUMBER: 11715967 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Metropolitan Club of Chicago, Inc. CENTRAL INDEX KEY: 0001515575 IRS NUMBER: 751402371 STATE OF INCORPORATION: IL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-23 FILM NUMBER: 11715966 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Plaza Club of San Antonio, Inc. CENTRAL INDEX KEY: 0001515576 IRS NUMBER: 751395007 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-19 FILM NUMBER: 11715962 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: University Club, Inc. CENTRAL INDEX KEY: 0001515577 IRS NUMBER: 751428326 STATE OF INCORPORATION: MS FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-17 FILM NUMBER: 11715960 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Timarron Golf Club, Inc. CENTRAL INDEX KEY: 0001515578 IRS NUMBER: 752650747 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-16 FILM NUMBER: 11715959 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Tower City Club of Virginia, Inc. CENTRAL INDEX KEY: 0001515579 IRS NUMBER: 752495420 STATE OF INCORPORATION: VA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-15 FILM NUMBER: 11715958 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Tower Club of Dallas, Inc. CENTRAL INDEX KEY: 0001515580 IRS NUMBER: 751749422 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-14 FILM NUMBER: 11715957 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Tower Club, Inc. CENTRAL INDEX KEY: 0001515581 IRS NUMBER: 751401441 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-13 FILM NUMBER: 11715956 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Town Point Club, Inc. CENTRAL INDEX KEY: 0001515582 IRS NUMBER: 751844323 STATE OF INCORPORATION: VA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-12 FILM NUMBER: 11715955 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Treesdale Country Club, Inc. CENTRAL INDEX KEY: 0001515583 IRS NUMBER: 752491095 STATE OF INCORPORATION: PA FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-11 FILM NUMBER: 11715954 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UMass Club Management, LLC CENTRAL INDEX KEY: 0001515584 IRS NUMBER: 611497383 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-10 FILM NUMBER: 11715953 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNC Alumni Club Management, Inc. CENTRAL INDEX KEY: 0001515585 IRS NUMBER: 752420355 STATE OF INCORPORATION: NC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-09 FILM NUMBER: 11715951 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: University Club Management Co., Inc. CENTRAL INDEX KEY: 0001515586 IRS NUMBER: 752659214 STATE OF INCORPORATION: FL FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-08 FILM NUMBER: 11715950 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Walnut Creek Management Corp CENTRAL INDEX KEY: 0001515587 IRS NUMBER: 751486903 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-06 FILM NUMBER: 11715948 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: West Park Club, Inc. CENTRAL INDEX KEY: 0001515588 IRS NUMBER: 752281293 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-05 FILM NUMBER: 11715947 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Westlake City Club, Inc. CENTRAL INDEX KEY: 0001515589 IRS NUMBER: 751800134 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-04 FILM NUMBER: 11715946 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Wildflower Country Club, Inc. CENTRAL INDEX KEY: 0001515590 IRS NUMBER: 752033118 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-03 FILM NUMBER: 11715945 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Willow Creek Management, Inc. CENTRAL INDEX KEY: 0001515591 IRS NUMBER: 752511017 STATE OF INCORPORATION: TX FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-02 FILM NUMBER: 11715944 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Woodside Plantation Country Club, Inc. CENTRAL INDEX KEY: 0001515592 IRS NUMBER: 752338803 STATE OF INCORPORATION: SC FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-01 FILM NUMBER: 11715943 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GP Bear's Best Las Vegas, Inc. CENTRAL INDEX KEY: 0001515812 IRS NUMBER: 752862989 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-83 FILM NUMBER: 11716034 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Canyon Gate at Las Vegas, Inc. CENTRAL INDEX KEY: 0001516067 IRS NUMBER: 752435654 STATE OF INCORPORATION: NV FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-158 FILM NUMBER: 11716117 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 FILER: COMPANY DATA: COMPANY CONFORMED NAME: University Club, Inc. (FL) CENTRAL INDEX KEY: 0001516540 IRS NUMBER: 751252248 STATE OF INCORPORATION: FL FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-173127-07 FILM NUMBER: 11715949 BUSINESS ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 972-243-6191 MAIL ADDRESS: STREET 1: 3030 LBJ FREEWAY, SUITE 600 STREET 2: ATTN: SEC REPORTING CITY: DALLAS STATE: TX ZIP: 75234 S-4 1 a2202241zs-4.htm S-4

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TABLE OF CONTENTS
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

Table of Contents

As filed with the Securities and Exchange Commission on March 28, 2011

Registration No. 333-            

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


ClubCorp Club Operations, Inc.
(Exact name of registrant as specified in its charter)

SEE TABLE OF ADDITIONAL REGISTRANTS

Delaware
(State or other jurisdiction of
incorporation or organization)		   7997
(Primary Standard Industrial
Classification Code Number)		   27-3894784
(I.R.S. Employer
Identification Number)

3030 LBJ Freeway, Suite 600
Dallas, Texas 75234
(972) 243-6191
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)


Curtis D. McClellan
Chief Financial Officer
ClubCorp Club Operations, Inc.
3030 LBJ Freeway, Suite 600
Dallas, Texas 75234
(972) 243-6191
(Name, address, including zip code, and telephone number, including area code, of agent for service)



With a copy to:

 William B. Brentani
Simpson Thacher & Bartlett LLP
2550 Hanover Street
Palo Alto, California 94304
(650) 251-5000


Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement is declared effective.

           If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.    o

           If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

           If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

           Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer o   Accelerated filer o   Non-accelerated filer ý
 (Do not check if a
smaller reporting company)		   Smaller reporting company o

           If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

           Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)    o

           Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)    o

CALCULATION OF REGISTRATION FEE

               
 
Title of each class of securities
to be registered
   Amount to be
registered
   Proposed maximum
offering price per
unit
   Proposed maximum
aggregate offering
price(1)
   Amount of
registration fee
 

10% Senior Notes due 2018

   $415,000,000   100%   $415,000,000   $48,181.50
 

Guarantees(2) of 10% Senior Notes due 2018

   $415,000,000   100%   $415,000,000   (3)

 
(1)
Estimated solely for the purposes of calculating the registration fee under Rule 457(f) of the Securities Act of 1933, as amended (the "Securities Act").

(2)
See inside facing page for additional registrant guarantors.

(3)
Pursuant to Rule 457(n) under the Securities Act no separate filing fee is required for the guarantees.


           The registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

Table of Contents


TABLE OF ADDITIONAL REGISTRANTS

Additional Registrants (as Guarantors of 10% Senior Notes due 2018)

Exact name of registrant as specified in its charter
  State or other
jurisdiction of
incorporation or
organization 		  I.R.S.
Employer
Identification
Number 		  Primary
Standard
Industrial
Classification
Code
Number 		 

191 Athletic Club Management Company, LLC

   Delaware     26-4052367     7997  

191 CC Operating Co., LLC

   Delaware     27-2164436     7997  

Akron Management Corp. 

   Ohio     75-1744518     7997  

Aliso Viejo Golf Club Joint Venture

   California     33-0760752     7997  

Anthem Golf, LLC

   Arizona     38-3739361     7997  

April Sound Management Corp. 

   Texas     75-1656690     7997  

Aspen Glen Golf Club Management Company

   Colorado     75-2710967     7997  

Athletic Club at the Equitable Center, Inc. 

   New York     75-2104208     7997  

AZ Club, LLC

   Delaware     26-1385452     7997  

Barton Creek Resort & Clubs, Inc. 

   Texas     75-2406688     7997  

Bay Oaks Country Club, Inc. 

   Texas     75-2356613     7997  

Bluegrass Club, LLC

   Tennessee     32-0167856     7997  

Brookhaven Country Club, Inc. 

   Texas     75-0976558     7997  

Canyon Gate at Las Vegas, Inc. 

   Nevada     75-2435654     7997  

Capital City Club of Montgomery, Inc. 

   Alabama     75-1547992     7997  

Capital City Club of Raleigh, Inc. 

   North Carolina     75-1551311     7997  

CCA Golf Course Holdco, LLC

   Delaware     20-5997878     7997  

CCA Mezzanine Holdco, LLC

   Delaware     20-5997962     7997  

Centre Club, Inc. 

   Florida     75-1843838     7997  

Citrus Club, Inc. 

   Florida     75-1322645     7997  

City Club of Washington, Inc. 

   District of Columbia     75-2061765     7997  

Club at Boston College, Inc. 

   Massachusetts     75-2710023     7997  

Club Le Conte, Inc. 

   Tennessee     75-1597579     7997  

ClubCorp—Asia

   Nevada     75-2376497     7997  

ClubCorp Airways Golf, Inc. 

   Delaware     75-2149806     7997  

ClubCorp Aliso Viejo Holding Corp. 

   Delaware     75-2671651     7997  

ClubCorp Asia Investments Inc. 

   Nevada     75-2538528     7997  

ClubCorp Aven Holdings, Inc. 

   Delaware     75-2933420     7997  

ClubCorp Braemar Country Club, Inc. 

   Delaware     95-2040525     7997  

ClubCorp Bunker Hill Club, Inc. 

   Delaware     75-2200418     7997  

ClubCorp Buying Services, Inc. 

   Delaware     75-2932004     7997  

ClubCorp Canyon Crest Country Club, Inc. 

   Delaware     95-2494912     7997  

ClubCorp Center Club, Inc. 

   Delaware     75-1836936     7997  

ClubCorp Coto Property Holdings, Inc. 

   Delaware     75-2572520     7997  

ClubCorp Crow Canyon Management Corp. 

   Delaware     75-1730343     7997  

ClubCorp Desert Falls Country Club, Inc. 

   Delaware     75-2501440     7997  

ClubCorp Financial Management Company

   Nevada     75-2408217     7997  

ClubCorp GCL Corporation

   Delaware     75-2693309     7997  

ClubCorp Gen Par of Texas, L.L.C. 

   Delaware     75-2810007     7997  

ClubCorp Golf of California, L.L.C. 

   Delaware     74-2910563     7997  

ClubCorp Golf of Florida, L.L.C. 

   Delaware     74-2910562     7997  

ClubCorp Golf of Georgia, L.P. 

   Georgia     75-2807677     7997  

ClubCorp Golf of North Carolina, L.L.C. 

   Delaware     74-2910564     7997  

ClubCorp Golf of Texas, L.P. 

   Texas     75-2807428     7997  

ClubCorp Granite Bay Management, Inc. 

   Delaware     68-0268581     7997  

ClubCorp Graphics, Inc. 

   Florida     75-2570324     7997  

Table of Contents

Exact name of registrant as specified in its charter
  State or other
jurisdiction of
incorporation or
organization 		  I.R.S.
Employer
Identification
Number 		  Primary
Standard
Industrial
Classification
Code
Number 		 

ClubCorp Hamlet, LLC

   Delaware     27-5160613     7997  

ClubCorp International, Inc. 

   Nevada     75-2182069     7997  

ClubCorp IW Golf Club, Inc. 

   Delaware     75-2536737     7997  

ClubCorp Management Company for Stone Creek, LLC

   Delaware     26-1387499     7997  

ClubCorp Mexico, Inc. 

   Nevada     75-2658417     7997  

ClubCorp Mezzanine Borrower, LLC

   Delaware     20-5997636     7997  

ClubCorp Mission Hills Country Club, Inc. 

   Delaware     75-2502965     7997  

ClubCorp Mortgage Borrower, LLC

   Delaware     20-5997707     7997  

ClubCorp Porter Valley Country Club, Inc. 

   Delaware     95-2487346     7997  

ClubCorp Publications, Inc. 

   Nevada     75-1825377     7997  

ClubCorp San Jose Club, Inc. 

   Delaware     75-2670415     7997  

ClubCorp Shadow Ridge Golf Club, Inc. 

   Delaware     75-1686724     7997  

ClubCorp Spring Valley Lake Country Club, Inc. 

   Delaware     75-1473014     7997  

ClubCorp Symphony Towers Club, Inc. 

   Delaware     75-2061871     7997  

ClubCorp Teal Bend Golf Club, Inc. 

   Delaware     75-2649978     7997  

ClubCorp TTC, LLC

   Delaware     27-2491368     7997  

ClubCorp Turkey Creek Golf Club, Inc. 

   Delaware     75-2789352     7997  

ClubCorp USA, Inc. 

   Delaware     75-2114856     7997  

ClubCorp Willow Creek, LLC

   Delaware     27-5160270     7997  

ClubCorp Wind Watch, LLC

   Delaware     27-5160463     7997  

Columbia Capital City Club Corp. 

   South Carolina     75-2427265     7997  

Columbia Tower Club, Inc. 

   Washington     75-2014780     7997  

Countryside Country Club, Inc. 

   Florida     75-1560231     7997  

Currituck Golf, LLC

   Delaware     27-3094230     7997  

Dallas Tower Club, Inc. 

   Texas     75-2044758     7997  

Dayton Racquet Club, Inc. 

   Ohio     75-1315276     7997  

DeBary Management Corp. 

   Florida     75-2756690     7997  

Diamante' Golf Club Management, Inc. 

   Arkansas     75-2541981     7997  

Diamante' Golf Club Partners, Inc. 

   Arkansas     75-2541980     7997  

Diamond Run Club, Inc. 

   Pennsylvania     75-2793869     7997  

Empire Ranch, LLC

   Delaware     75-2955822     7997  

Fair Oaks Club Corp. 

   Texas     75-2135345     7997  

Farms of New Kent Management, LLC

   Delaware     26-2238822     7997  

FFFC Golf Acquisitions, L.L.C. 

   Delaware     75-2114856     7997  

First City Club Management, Inc. 

   Georgia     75-1970473     7997  

Fort Bend Acquisition Corp. 

   Texas     75-2471088     7997  

GCC Asset Management, Inc. 

   Texas     75-2382807     7997  

Glendale Management Corp. 

   Wisconsin     75-1973978     7997  

Glendale Racquet Club, Inc. 

   Wisconsin     39-1147563     7997  

GP Bear's Best Atlanta, Inc. 

   Georgia     75-2824663     7997  

GP Bear's Best Las Vegas, Inc. 

   Nevada     75-2862989     7997  

GRanch Golf Club, Inc. 

   Arizona     75-2594364     7997  

Greenbrier Country Club, Inc. 

   Virginia     75-2166235     7997  

Greenspoint Club, Inc. 

   Texas     75-1788013     7997  

Hackberry Creek Country Club, Inc. 

   Texas     75-1836955     7997  

Haile Plantation Management Corp. 

   Florida     75-2587862     7997  

Harbour Club of Charleston, Inc. 

   South Carolina     75-2481681     7997  

Hearthstone Country Club, Inc. 

   Texas     75-1560896     7997  

Table of Contents

Exact name of registrant as specified in its charter
  State or other
jurisdiction of
incorporation or
organization 		  I.R.S.
Employer
Identification
Number 		  Primary
Standard
Industrial
Classification
Code
Number 		 

Hill Country Golf, Inc. 

   Texas     75-1467720     7997  

Hills II of Lakeway, Inc. 

   Texas     75-2839814     7997  

Houston City Club, Inc. 

   Texas     75-1613884     7997  

HPG, L.C. 

   Florida     59-3159082     7997  

Hunter's Green Acquisition Corp. 

   Florida     75-2623675     7997  

Indigo Run Asset Corp. 

   South Carolina     75-2626876     7997  

Irving Club Acquisition Corp. 

   Texas     75-2433335     7997  

Kingwood Country Club, Inc. 

   Texas     75-1384721     7997  

Knollwood Country Club, Inc. 

   Indiana     75-1860187     7997  

La Cima Club, Inc. 

   Texas     75-1945200     7997  

Lakeway Clubs, Inc. 

   Texas     74-2751365     7997  

Laurel Springs Holdco, LLC

   Delaware     27-5160857     7997  

LionsGate Golf Club, Inc. 

   Kansas     75-2810637     7997  

MAC Club, LLC

   Delaware     30-0390557     7997  

Management Company for Eagle Ridge and The Preserve

   Florida     75-2420359     7997  

Manager for CCHH, Inc. 

   South Carolina     75-2558851     7997  

Master Club, Inc. 

   Nevada     75-2803822     7997  

Memorial Stadium Club Management Corp. 

   Texas     75-2772291     7997  

Memphis City Club, Inc. 

   Tennessee     75-2187471     7997  

MH Villas, Inc. 

   California     75-2656914     7997  

Monarch EP Management Corp. 

   Florida     75-2569192     7997  

Nashville Club Management, Inc. 

   Tennessee     75-1973979     7997  

New England Country Club Management, Inc. 

   Massachusetts     75-2481683     7997  

Northwood Management Corp. 

   Georgia     75-1617671     7997  

Oak Pointe Country Club, Inc. 

   Michigan     75-2413363     7997  

Oakmont Management Corp. 

   Texas     75-2457729     7997  

Operations Company for Homestead, Inc. 

   Virginia     75-2515916     7997  

Owners Club Asset Company

   Delaware     75-2756700     7997  

Piedmont Club, Inc. 

   North Carolina     75-2070602     7997  

Piedmont Golfers' Club LLC

   South Carolina     75-2114856     7997  

Pyramid Club Management, Inc. 

   Pennsylvania     75-2376505     7997  

Quail Hollow Management, Inc. 

   Ohio     75-1904889     7997  

Queens Harbour Corporation

   Florida     75-2509681     7997  

Renaissance Club, Inc. 

   Michigan     75-1531680     7997  

Richardson Country Club Corp. 

   Texas     75-1335506     7997  

River Creek Country Club, Inc. 

   Virginia     75-2627677     7997  

Rivers Club, Inc. 

   Pennsylvania     75-1781096     7997  

Shady Valley Management Corp. 

   Texas     75-2406228     7997  

Shoreby Club Management, Inc. 

   Ohio     75-2266610     7997  

Silver Lake Management Corp. 

   Ohio     75-2283521     7997  

Skyline Club, Inc. 

   Indiana     75-1728926     7997  

Society Management, Inc. 

   Nevada     75-2644439     7997  

Southern Trace Country Club of Shreveport, Inc. 

   Louisiana     75-2381261     7997  

Stonebriar Management Corp. 

   Texas     75-2526115     7997  

Stonehenge Club, Inc. 

   Virginia     75-2587252     7997  

Tampa Palms Club, Inc. 

   Florida     75-2457726     7997  

The 191 Club, Inc. 

   Georgia     75-2351711     7997  

The Buckhead Club, Inc. 

   Georgia     75-2108173     7997  

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Exact name of registrant as specified in its charter
  State or other
jurisdiction of
incorporation or
organization 		  I.R.S.
Employer
Identification
Number 		  Primary
Standard
Industrial
Classification
Code
Number 		 

The Club at Cimarron, Inc. 

   Texas     75-2345619     7997  

The Club at Society Center, Inc. 

   Ohio     75-2303794     7997  

The Commerce Club, Inc. 

   South Carolina     75-1870073     7997  

The Downtown Club, Inc. 

   Texas     75-1476400     7997  

The Manager of the Owner's Club, Inc. 

   South Carolina     75-2584733     7997  

The Metropolitan Club of Chicago, Inc. 

   Illinois     75-1402371     7997  

The Owner's Club, Inc. 

   Delaware     75-2608736     7997  

The Owners Club at Hilton Head, L.P. 

   South Carolina     75-2584943     7997  

The Owner's Club of South Carolina, L.L.C. 

   Delaware     75-2584737     7997  

The Plaza Club of San Antonio, Inc. 

   Texas     75-1395007     7997  

The Summit Club, Inc. 

   Alabama     75-2277008     7997  

The University Club, Inc. 

   Mississippi     75-1428326     7997  

Timarron Golf Club, Inc. 

   Texas     75-2650747     7997  

Tower City Club of Virginia, Inc. 

   Virginia     75-2495420     7997  

Tower Club of Dallas, Inc. 

   Texas     75-1749422     7997  

Tower Club, Inc. 

   Florida     75-1401441     7997  

Town Point Club, Inc. 

   Virginia     75-1844323     7997  

Treesdale Country Club, Inc. 

   Pennsylvania     75-2491095     7997  

UMass Club Management, LLC

   Delaware     61-1497383     7997  

UNC Alumni Club Management, Inc. 

   North Carolina     75-2420355     7997  

University Club Management Co., Inc. 

   Florida     75-2659214     7997  

University Club, Inc. 

   Florida     75-1252248     7997  

Walnut Creek Management Corporation

   Texas     75-1486903     7997  

West Park Club, Inc. 

   Texas     75-2281293     7997  

Westlake City Club, Inc. 

   Texas     75-1800134     7997  

Wildflower Country Club, Inc. 

   Texas     75-2033118     7997  

Willow Creek Management, Inc. 

   Texas     75-2511017     7997  

Woodside Plantation Country Club, Inc. 

   South Carolina     75-2338803     7997  
*
The address, including zip code, and telephone number, including area code, of each of the co-registrants is 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234, Attn: General Counsel, (972) 243-6191.

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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

SUBJECT TO COMPLETION, DATED MARCH 28, 2011

PROSPECTUS

GRAPHIC

ClubCorp Club Operations, Inc.


Offer to Exchange

        We are offering to exchange up to $415,000,000 aggregate principal amount at maturity of our new 10% Senior Notes due 2018 (the "exchange notes"), which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for any and all of our outstanding 10% Senior Notes due 2018 (the "outstanding notes"). We are offering to exchange the exchange notes for the outstanding notes to satisfy our obligations contained in the registration rights agreement that we entered into when the outstanding notes were sold pursuant to Rule 144A and Regulation S under the Securities Act.


The Exchange Offer

    •
    We will exchange all outstanding notes that are validly tendered and not validly withdrawn for an equal principal amount of exchange notes that are freely tradable.

    •
    You may withdraw tenders of outstanding notes at any time prior to the expiration date of the exchange offer.

    •
    The exchange offer expires at 5:00 p.m., New York City time, on            , 2011, unless extended. We do not currently intend to extend the expiration date.

    •
    The exchange notes to be issued in the exchange offer will not be a taxable event for U.S. federal income tax purposes.

    •
    We will not receive any proceeds from the exchange offer.

The Exchange Notes

    •
    The terms of the exchange notes to be issued in the exchange offer are substantially identical to the outstanding notes, except that the exchange notes will be freely tradable, except in limited circumstances described below.

Resales of the Exchange Notes

    •
    The exchange notes may be sold in the over-the-counter market, in negotiated transactions or through a combination of such methods. We do not plan to list the notes on a national market.

        All untendered outstanding notes will continue to be subject to the restrictions on transfer set forth in the outstanding notes and in the indenture. In general, the outstanding notes may not be offered or sold, unless registered under the Securities Act or except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the outstanding notes under the Securities Act.

        See "Risk Factors" beginning on page 16 for a discussion of certain risks that you should consider before participating in the exchange offer.

        Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. The letter of transmittal states that by so acknowledging and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for outstanding notes where such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. In addition, all dealers effecting transactions in the exchange notes may be required to deliver a prospectus. We have agreed that, for a period of 90 days after the date of this prospectus (subject to extension as provided in the registration rights agreement), we will make this prospectus available to any broker-dealer for use in connection with such resale. See "Plan of Distribution."

        Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the exchange notes to be distributed in the exchange offer or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

The date of this prospectus is            , 2011.

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TABLE OF CONTENTS

 
   Page  

Prospectus Summary

     1  

Risk Factors

     16  

Forward-Looking Statements

     36  

Use of Proceeds

     38  

Capitalization

     38  

Unaudited Pro Forma Consolidated Financial Data

     39  

Selected Financial Data

     39  

Management's Discussion and Analysis of Financial Condition and Results of Operations

     41  

Business

     66  

Management

     86  

Compensation Discussion and Analysis

     90  

Principal Stockholders

     102  

Certain Relationships and Related Party Transactions

     104  

Description of Other Indebtedness

     105  

The Exchange Offer

     108  

Description of Notes

     119  

Material U.S. Federal Income and Estate Tax Considerations

     181  

Certain ERISA Considerations

     187  

Plan of Distribution

     189  

Legal Matters

     189  

Experts

     190  

Where You Can Find More Information

     190  

Index to Consolidated Financial Statements

     F-1  


        You should rely only on the information contained in this prospectus or in any additional written communication prepared by or authorized by us. We have not authorized anyone to provide you with any information or to represent anything about us, our financial results or the exchange offer that is not contained in this prospectus or in any additional written communication prepared by or on behalf of us. If given or made, any such other information or representation should not be relied upon as having been authorized by us. We are not making an offer to exchange the outstanding notes in any jurisdiction where the offer or sale is not permitted. You should assume that the information in this prospectus or in any additional written communication prepared by or on behalf of us is accurate only as of the date on its cover page.

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PROSPECTUS SUMMARY

        This summary highlights selected information contained in this prospectus and is not complete and does not contain all of the information that you should consider before tendering your notes in the exchange offer. To understand all of the terms of the exchange offer and for a more complete understanding of our business, you should read this summary together with the entire prospectus. Unless the context otherwise requires, the terms "ClubCorp," "we," "us," "our" in this prospectus refer to ClubCorp Club Operations, Inc. and its subsidiaries (ClubCorp, Inc. and subsidiaries prior to November 30, 2010).

        Our fiscal year consists of a 52/53 week period ending on the last Tuesday of December. Each of our first, second and third fiscal quarters consists of 12 weeks and our fourth fiscal quarter consists of 16 weeks, with an extra week added onto the fourth quarter every five to six years. Unless the context indicates otherwise, whenever we refer in this prospectus to a particular year, with respect to ourselves, we mean the fiscal year ending in that particular calendar year.


Our Company

        We are one of the largest owners and managers of private golf, country, business, sports and alumni clubs in North America, with a network of clubs that includes over 147,000 memberships and 350,000 individual members. As of December 28, 2010, we owned or operated 98 golf and country clubs and 55 business, sports and alumni clubs in 25 states, the District of Columbia, and two foreign countries. We believe that our expansive network of clubs and our focus on facilities, recreation and social programming differentiates us from our competitors and enhances our ability to attract members across a number of desirable demographic groups. Our clubs offer a lifestyle that is designed to appeal to the entire family, resulting in member loyalty, which we believe translates financially into a more economically resilient leisure product and allows us a greater ability to capture discretionary leisure spending than traditional clubs.

        Our portfolio of golf properties includes a broad offering of clubs designed to appeal to a diverse membership base but with a specific focus on the mass affluent market segment. These clubs include marquee world renowned golf clubs and established regional and local private golf and country clubs that we believe are conveniently located to our members. We also own and manage well known business, sports and alumni clubs. Our alumni clubs are associated with universities with significant alumni networks and are designed to provide a connection between the university and its alumni and faculty. Our business clubs are generally located in office towers or business complexes and cater to business executives, professionals and entrepreneurs with a need to meet, network and socialize in a private, upscale location. Our sports clubs include a variety of fitness and racquet facilities. In addition, we offer a network of products, services and amenities through membership upgrades that provide access to our extensive network of clubs and leverage our alliances with other clubs, facilities and properties.

        Founded in 1957 with one country club in Dallas, Texas, we were one of the first companies to enter into the professional ownership and operation of golf and country club businesses. In 1966, we established our first business club on the belief that we could profitably expand our operations by applying our golf club management skills and member-oriented philosophy to a related line of business. In 1999, we began selling various upgrade programs that offer participating members access to virtually all of our clubs and other clubs, facilities and properties through usage arrangements, providing our members more choices for a wide variety of products, services and amenities. We remained family owned until December 2006, when we were acquired by affiliates of KSL Capital Partners, LLC ("KSL" or "Sponsor"), a private equity firm specializing in travel and leisure businesses.

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Competitive Strengths

        We became a leader in the private club industry by following our quality of service and member-oriented philosophies and by taking advantage of a variety of organic growth opportunities, including the implementation of network offerings of products, services and amenities, and external growth opportunities, such as through the acquisition and rehabilitation of underperforming clubs. We intend to maintain our leadership position by continuing to capitalize on the following competitive strengths:

    •
    Strong and Diverse Network of Clubs.  We believe we have a diverse portfolio of clubs anchored by marquee assets and complimented by local clubs woven into the communities of our members.

    •
    Marquee Collection of Assets.  We believe that we have assembled a portfolio of some of the best known golf and business clubs across the United States and that these properties help distinguish us from our competitors.

    •
    Large, Stable Membership Base with Attractive Member Demographics.  Our large and stable base of memberships creates a significant recurring revenue stream.

    •
    Host of High Profile Golf Events and Winner of National Accolades.  Each year, we host a number of high profile events and win numerous local and national awards, which generate substantial publicity and help drive new membership and club utilization.

    •
    Experienced Management Team.  We believe we have some of the most experienced and dedicated professional managers and executives in the private club industry.

Business Strategy

        Fundamental to ClubCorp's business is the belief that private clubs represent a significant business opportunity for a company that can combine professional development and management skills with the dedication to personal service necessary to attract and retain members. Our principal objective is to maximize our revenues and profitability by providing a superior delivery of high quality club and golf experiences to our members and guests. To achieve this objective, we intend to continue to:

    •
    Grow Membership Enrollment and Increase Facility Usage.  We believe that providing our members and their guests with a high-quality and personalized experience will increase demand for our facilities and services and allow us to add new memberships.

    •
    Leverage Our Existing Customer Base by Cross-Selling Our Products and Services to Existing Members and Guests. We believe that there are significant opportunities to increase operating revenues by marketing our interrelated products and innovative programs to our existing members.

    •
    Distinguish and Market Our Properties and Company Brand Names.  We believe that many of our country clubs offer members an experience that combines world class golf facilities and dining opportunities, in an attractive and desirable setting.

    •
    Profit From Previous Significant Capital Expenditure Projects.  Since the beginning of fiscal year 2007, we have invested over $247.4 million to complete significant expansion and replacement projects at many of our clubs and facilities, exclusive of the discontinued Non-Core Entities discussed in the ClubCorp Formation.

    •
    Focus on Selected Acquisitions and Opportunities to Expand our Business.  We continually evaluate opportunities to expand our business through select acquisitions, joint ventures and management agreements.

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Industry Trends

        We believe the golf industry provides a favorable backdrop for our business. Specifically, we believe demand for private golf and country clubs is generally more resilient to economic cycles than public golf facilities and other hospitality assets. In addition to positive long-term recreational, travel and tourism spending trends, we believe several characteristics support our belief, including: (1) attractive supply/demand dynamics, (2) member demographic profiles and (3) stable recent and long-term performance.


ClubCorp Formation

        ClubCorp is a holding company that was formed on November 30, 2010, as part of a reorganization of ClubCorp, Inc. ("CCI") for the purpose of operating and managing golf, country, business, sports and alumni clubs.

        Prior to November 30, 2010, CCI was a holding company that through its subsidiaries owned and operated golf, country, business, sports and alumni clubs, two full-service resorts and certain other equity and realty interests. The two full service resorts and certain other equity, realty and future royalty interests are referred to as the "Non-Core Entities". On November 30, 2010, the following transactions occurred (the "ClubCorp Formation") which were structured to complete the contribution of the golf, country, business, sports and alumni clubs into ClubCorp. A summary of the transactions relevant to ClubCorp are described below:

    •
    Fillmore CCA Holdings, Inc. ("Fillmore Inc.") formed two wholly owned subsidiaries, ClubCorp and CCA Club Operations Holdings, LLC ("Parent"), and transferred its interests through a contribution of 100% of the stock of CCI to ClubCorp.

    •
    Investment vehicles controlled by KSL contributed $260.5 million as equity capital to ClubCorp.

    •
    Fillmore Inc. reincorporated in Nevada through a merger into a newly formed Nevada corporation, ClubCorp Holdings, Inc. ("Holdings"), with Holdings as the surviving entity. CCI merged into ClubCorp USA, Inc. ("CCUSA"), with CCUSA surviving as a wholly-owned subsidiary of ClubCorp.

    •
    ClubCorp issued and sold $415.0 million of unsecured notes and borrowed $310.0 million of secured term loans under our new secured credit facilities.

    •
    ClubCorp sold its Non-Core Entities to affiliates of KSL.

    •
    ClubCorp repaid a portion of the loans under its then existing secured credit facilities. The lenders under such facilities forgave the remaining $342.3 million of debt owed under such facilities and such facilities were terminated.

    •
    ClubCorp settled certain balances owed to affiliates of KSL.

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 Our Corporate Structure

        The following chart illustrates ClubCorp's parent companies, subsidiaries and debt capitalization as of December 28, 2010:

GRAPHIC

(*)
Certain of our non-guarantor subsidiaries are not 100% owned by us.

        As of December 28, 2010, ClubCorp and its subsidiary guarantors accounted for approximately 91.8% of our total assets, excluding intercompany items. For the fiscal year ended December 28, 2010, ClubCorp and its subsidiary guarantors accounted for 93.4% of our revenues.


Our Sponsor

        As of December 28, 2010, affiliates of KSL owned indirectly 97.3% of the equity interests of Fillmore, our indirect parent company, with the remaining 2.7% owned by members of management of ClubCorp USA, Inc. KSL, with $2.9 billion under management, is a leading U.S. private equity firm dedicated to investments in travel and leisure businesses. KSL was founded in 2005 and has offices in Denver and New York.

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 Additional Information

        We were incorporated as a Delaware corporation in 2010. Our principal executive offices are located at 3030 LBJ Freeway, Suite 600, Dallas, TX 75234. Our telephone number is (972) 243-6191. We maintain various websites, including our corporate website at www.clubcorp.com. Our websites, and the information contained on them, are not part of this prospectus.


Market Share and Similar Information

        The market share and other information contained in this prospectus is based on our own estimates, independent industry publications, reports by market research firms, including confidential third-party commissioned studies, or other published and unpublished independent sources. In each case, we believe that they are reasonable estimates, although we have not independently verified market and industry data provided by third parties. Market share information is subject to changes, however, and cannot always be verified with complete certainty due to limits on the availability and reliability of raw data, the voluntary nature of the data-gathering process and other limitations and uncertainties inherent in any statistical survey of market share. In addition, customer preferences can and do change and the definition of the relevant market is a matter of judgment and analysis. As a result, you should be aware that market share and other similar information set forth in this prospectus and estimates and beliefs based on such data may not be reliable.

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The Exchange Offer

        In this prospectus, the term "outstanding notes" refers to the 10% Senior Notes due 2018 issued in a private placement on November 30, 2010. The term "exchange notes" refers to the 10% Senior Notes due 2018, as registered under the Securities Act of 1933, as amended (the "Securities Act"), offered by this prospectus. The term "notes" refers collectively to the outstanding notes and the exchange notes. The summary below describes the principal terms of the exchange offer. See also the section of this prospectus titled "The Exchange Offer," which contains a more detailed description of the terms and conditions of the exchange offer.

General

   In connection with the private placement, we entered into a registration rights agreement with the purchasers in which we agreed, among other things, to deliver this prospectus to you and to obtain the effectiveness of the registration statement on Form S-4 of which this prospectus is a part within 360 days after the date of original issuance of the outstanding notes. You are entitled to exchange in the exchange offer your outstanding notes for exchange notes, which are substantially identical in all material respects to the outstanding notes except:

 

•       the exchange notes have been registered under the Securities Act;

 

•       the terms with respect to transfer restrictions no longer apply, provided that the resale conditions described below are satisfied;

 

•       the exchange notes are not entitled to any registration rights that are applicable to the outstanding notes under the registration rights agreement; and

 

•       the provisions of the registration rights agreement that provide for payment of additional amounts upon a registration default are no longer applicable.

The Exchange Offer

  

We are offering to exchange up to $415,000,000 aggregate principal amount at maturity of 10% Senior Secured Notes due 2018 and the related guarantees, which have been registered under the Securities Act, for any and all of our outstanding 10% Senior Notes due 2018 and the related guarantees.

 

Outstanding notes may be exchanged only in denominations of $2,000 and in integral multiples of $1,000 in excess thereof.

 

Subject to the satisfaction or waiver of specified conditions, we will exchange the exchange notes for all outstanding notes that are validly tendered and not validly withdrawn prior to the expiration of the exchange offer. We will cause the exchange to be effected promptly after the expiration of the exchange offer.

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Resale

  

Based on an interpretation by the staff of the Securities and Exchange Commission (the "SEC") set forth in no-action letters issued to third parties, we believe that the exchange notes issued pursuant to the exchange offer in exchange for outstanding notes may be offered for resale, resold and otherwise transferred by you (unless you are our "affiliate" within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that:

 

•       you are acquiring the exchange notes in the ordinary course of your business; and

 

•       you have not engaged in, do not intend to engage in and have no arrangement or understanding with any person to participate in a distribution of the exchange notes.

 

If you are a broker-dealer and receive exchange notes for your own account in exchange for outstanding notes that you acquired as a result of market-making activities or other trading activities, you must acknowledge that you will deliver this prospectus in connection with any resale of the exchange notes. See "Plan of Distribution."

 

Any holder of outstanding notes who:

 

•       is our affiliate;

 

•       does not acquire exchange notes in the ordinary course of its business; or

 

•       tenders its outstanding notes in the exchange offer with the intention to participate, or for the purpose of participating, in a distribution of exchange notes

 

cannot rely on the position of the staff of the SEC enunciated in Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling (available July 2, 1993), or similar no-action letters and, in the absence of an exemption therefrom, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the exchange notes.

Expiration Date

  

The exchange offer will expire at 5:00 p.m., New York City time, on            , 2011, unless extended by us. We do not currently intend to extend the expiration of the exchange offer.

Withdrawal

  

You may withdraw the tender of your outstanding notes at any time prior to the expiration of the exchange offer. We will return to you any of your outstanding notes that are not accepted for any reason for exchange, without expense to you, promptly after the expiration or termination of the exchange offer.

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Interest on the Exchange Notes and the Outstanding Notes

  

Each exchange note bears interest at the rate of 10% per annum from the original issuance date of the outstanding notes or from the most recent date on which interest has been paid on the notes. The interest on the notes is payable on June 1 and December 1 of each year, beginning on June 1, 2011. No interest will be paid on outstanding notes following their acceptance for exchange.

Conditions to the Exchange Offer

  

The exchange offer is subject to customary conditions, which we may waive. See "The Exchange Offer—Conditions to the Exchange Offer."

Procedures for Tendering Outstanding Notes

  

If you wish to participate in the exchange offer, you must complete, sign and date the accompanying letter of transmittal, or a facsimile of such letter of transmittal, according to the instructions contained in this prospectus and the letter of transmittal. You must then mail or otherwise deliver the letter of transmittal, or a facsimile of such letter of transmittal, together with the outstanding notes and any other required documents, to the exchange agent at the address set forth on the cover page of the letter of transmittal.

 

If you hold outstanding notes through The Depository Trust Company ("DTC") and wish to participate in the exchange offer, you must comply with the Automated Tender Offer Program procedures of DTC by which you will agree to be bound by the letter of transmittal.

 

By signing, or agreeing to be bound by, the letter of transmittal, you will represent to us that, among other things:

 

•       you are not our "affiliate" within the meaning of Rule 405 under the Securities Act;

 

•       you do not have an arrangement or understanding with any person or entity to participate in the distribution of the exchange notes in violation of the provisions of the Securities Act;

 

•       you are not engaged in, and do not intend to engage in, a distribution of the exchange notes in violation of the provisions of the Securities Act;

 

•       you are acquiring the exchange notes in the ordinary course of your business; and

 

•       if you are a broker-dealer that will receive exchange notes for your own account in exchange for outstanding notes that were acquired as a result of market-making activities, that you will deliver a prospectus, as required by law, in connection with any resale of such exchange notes.

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Special Procedures for Beneficial Owners

  

If you are a beneficial owner of outstanding notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, and you wish to tender those outstanding notes in the exchange offer, you should contact the registered holder promptly and instruct the registered holder to tender those outstanding notes on your behalf. If you wish to tender on your own behalf, you must, prior to completing and executing the letter of transmittal and delivering your outstanding notes, either make appropriate arrangements to register ownership of the outstanding notes in your name or obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the expiration date.

Guaranteed Delivery Procedures

  

If you wish to tender your outstanding notes and your outstanding notes are not immediately available or you cannot deliver your outstanding notes, the letter of transmittal or any other required documents, or you cannot comply with the procedures under DTC's Automated Tender Offer Program for transfer of book-entry interests, prior to the expiration date, you must tender your outstanding notes according to the guaranteed delivery procedures set forth in this prospectus under "The Exchange Offer—Guaranteed Delivery Procedures."

Effect on Holders of Outstanding Notes

  

As a result of the making of, and upon acceptance for exchange of all validly tendered outstanding notes pursuant to the terms of the exchange offer, we will have fulfilled a covenant under the registration rights agreement. Accordingly, there will be no payments of additional amounts on the outstanding notes under the circumstances described in the registration rights agreement. If you do not tender your outstanding notes in the exchange offer, you will continue to be entitled to all the rights and limitations applicable to the outstanding notes as set forth in the indenture, except we will not have any further obligation to you to provide for the exchange and registration of the outstanding notes under the registration rights agreement. To the extent that outstanding notes are tendered and accepted in the exchange offer, the trading market for outstanding notes could be adversely affected.

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Consequences of Failure to Exchange

  

All untendered outstanding notes will continue to be subject to the restrictions on transfer set forth in the outstanding notes and in the indenture. In general, the outstanding notes may not be offered or sold, unless registered under the Securities Act or except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not intend to register the outstanding notes under the Securities Act, except as otherwise required by the registration rights agreement.

United States Federal Income Tax Consequences of the Exchange Offer

  

The exchange of outstanding notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes. See "Material U.S. Federal Income Tax Consequences—Exchange Offer."

Use of Proceeds

  

We will not receive any cash proceeds from the issuance of exchange notes in the exchange offer. See "Use of Proceeds."

Exchange Agent

  

Wilmington Trust FSB is the exchange agent for the exchange offer. The addresses and telephone numbers of the exchange agent are set forth in the section captioned "The Exchange Offer—Exchange Agent."

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The Exchange Notes

        The summary below describes the principal terms of the exchange notes. Certain of the terms and conditions described below are subject to important limitations and exceptions. The "Description of Notes" section of this prospectus contains more detailed descriptions of the terms and conditions of the outstanding notes and the exchange notes. The exchange notes will have terms substantially identical to the outstanding notes, except that the exchange notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions, registration rights and additional payments upon a failure to fulfill certain of our obligations under the registration rights agreement.

Issuer   ClubCorp Club Operations, Inc.

Securities Offered
 
$415,000,000 million aggregate principal amount of 10% Senior Notes due 2018 and the related guarantees.

Maturity Date
 
December 1, 2018.

Interest Rate
 
10% per annum.

Interest Payment Dates
 
Payable semiannually in cash in arrears on June 1 and December 1 of each year, beginning June 1, 2011. Interest accrues from the original issuance date of the outstanding notes or from the most recent date on which interest has been paid on the notes.

Guarantees
 
Each wholly owned subsidiary of ClubCorp Club Operations, Inc. that guarantees our obligations under our secured credit facilities will also fully and unconditionally guarantee the notes on a senior unsecured basis. The guarantees by the guarantors of the notes will be pari passu to all existing and future senior indebtedness of the guarantors.

Ranking
 
The exchange notes will be our senior unsecured obligations. They will rank equal in right of payment with our existing and future senior indebtedness and senior in right of payment to any of our existing and future subordinated indebtedness. The notes will be effectively subordinated to all of our secured debt to the extent of the value of the assets securing such debt and structurally subordinated to all of the existing and future liabilities of our subsidiaries that do not guarantee the notes. As of December 28, 2010, ClubCorp Club Operations, Inc., and its guarantor subsidiaries had approximately $745.1 million of indebtedness and our non-guarantor subsidiaries had $38.2 million of indebtedness, of which $32.0 million was non-recourse to us.

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Optional Redemption   At any time prior to December 1, 2014, we may redeem the notes, in whole or in part, at a price equal to 100% of the principal amount, plus an applicable "make-whole" premium and accrued and unpaid interest, if any, to the redemption date, as described under the caption "Description of the Notes—Optional Redemption." On and after December 1, 2014, we may redeem the notes, in whole or in part, at the redemption prices specified under the caption "Description of the Notes—Optional Redemption," plus accrued and unpaid interest, if any, to the date of redemption.

 
 
In addition, at any time prior to December 1, 2013, we may redeem up to 35% of the aggregate principal amount of the notes together with any additional notes issued under the indenture with the net cash proceeds of certain equity offerings as described under the caption "Description of the Notes—Optional Redemption."

Change of Control
 
If a change of control occurs, we must give holders of the notes the opportunity to sell us their notes at 101% of their face amount, plus accrued and unpaid interest. For more details, you should read "Description of Notes—Repurchase at the Option of Holders—Change of Control."

Restrictive Covenants
 
The indenture governing the notes contains covenants that limit our ability and the ability of certain of our subsidiaries to:

 

•       incur, assume or guarantee additional indebtedness;

 

•       pay dividends or distributions on capital stock or redeem or repurchase capital stock;

 

•       make investments;

 

•       enter into agreements that restrict the payment of dividends or other amounts by subsidiaries to us;

 

•       sell stock of our subsidiaries;

 

•       transfer or sell assets;

 

•       create liens;

 

•       enter into transactions with affiliates; and

 

•       enter into mergers or consolidations.

Original Issue Discount
 
The exchange notes will be issued with original issue discount ("OID") for U.S. federal income tax purposes. U.S. Holders, whether on the cash or accrual method of tax accounting, will be required to include any amounts representing OID in gross income (as ordinary income) on a constant yield to maturity basis for U.S. federal income tax purposes in advance of the receipt of cash payments to which such income is attributable. For further discussion, see "Material U.S. Federal Income and Estate Tax Considerations."

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No Prior Market   The exchange notes are a new issue of securities, and there is currently no established trading market for the exchange notes. We do not intend to apply for a listing of the exchange notes on any securities exchange or an automated dealer quotation system. Accordingly, there can be no assurance as to the development or liquidity of any market for the exchange notes.


Risk Factors

        You should carefully consider all the information in the prospectus prior to exchanging your outstanding notes. In particular, we urge you to carefully consider the factors set forth under the heading "Risk Factors."


Summary Financial and Other Data

        The following table sets forth our summary financial information and other data for the periods presented. The statements of operations data set forth below for the fiscal years ended December 30, 2008, December 29, 2009 and December 28, 2010, and the balance sheet data as of December 29, 2009 and December 28, 2010, are derived from our audited consolidated financial statements that are included elsewhere in this prospectus. The consolidated balance sheet data as of December 30, 2008 is derived from our unaudited consolidated financial statements not included in this prospectus. The unaudited consolidated financial statements were prepared on a basis consistent with our audited consolidated financial statements and include, in the opinion of management, all adjustments necessary for the fair presentation of the financial information contained in those statements.

        Prospective investors should read this summary consolidated financial and other data together with "Summary—ClubCorp Formation," "Use of Proceeds," "Capitalization," "Selected Financial Data" and

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"Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and the related notes included elsewhere in this prospectus.

 
   Fiscal Years Ended(1)  
 
   December 30,
2008 		  December 29,
2009 		  December 28,
2010(4) 		 
 
   (in thousands, except for ratios)
  

Statements of operations data:

                    

Revenues:

                    

Club operations

   $ 560,862   $ 515,388   $ 501,733  

Food and beverage

     218,960     191,778     192,022  

Other revenues

     3,637     2,467     2,882  
               

Total revenues

     783,459     709,633     696,637  
               

Club operating costs exclusive of depreciation

     530,152     461,260     458,241  

Cost of food and beverage sales exclusive of depreciation

     63,195     61,209     60,596  

Depreciation and amortization

     101,724     98,619     92,673  

Provision for doubtful accounts

     4,550     4,815     3,248  

Loss (gain) on disposals and acquisitions of assets

     3,880     6,473     (5,351 )

Impairment of assets

     2,642     11,808     9,243  

Selling, general and administrative expenses

     45,136     39,266     38,946  
               

Operating income from continuing operations

     32,180     26,183     39,041  

Interest and investment income

     4,290     2,684     714  

Equity in earnings from unconsolidated ventures

     1,514     706     1,309  

Interest expense

     (94,583 )   (58,383 )   (57,165 )

Change in fair value of interest rate cap agreements

     (10,454 )   2,624     (3,529 )

Gain on extinguishment of debt

     —     —     334,412  

Other income

     7,387     6,006     3,929  
               

(Loss) income before income taxes

     (59,666 )   (20,180 )   318,711  

Income tax benefit (expense)

     17,803     958     (57,109 )
               

(Loss) income from continuing operations

     (41,863 )   (19,222 )   261,602  

(Loss) income from discontinued operations, net of tax

     (23,584 )   (795 )   54  

Loss from discontinued Non-Core Entities, net of tax

     (4,134 )   (11,487 )   (8,779 )
               

Net (loss) income

   $ (69,581 ) $ (31,504 ) $ 252,877  

Balance sheet data:

                    

Cash and cash equivalents

   $ 213,288   $ 73,568   $ 56,531  

Restricted cash

     9,324     14,100     525  

Total assets

     2,429,663     2,163,515     1,780,929  

Membership deposits—current portion(2)

     31,240     38,161     51,704  

Long-term debt (net of current portion)

     1,512,994     1,391,367     772,079  

Membership deposits(2)

     192,624     205,253     211,624  

Total (deficit) equity

     (116,074 )   (244,357 )   231,029  

Other data:

                    

Ratio of earnings to fixed charges(3)

     0.42x     0.69x     5.93x  
(1)
Our fiscal year consists of a 52/53 week period ending on the last Tuesday of December. For 2008, our fiscal year was comprised of the 53 weeks ended December 30, 2008. For 2009 and 2010, our fiscal years were comprised of the 52 weeks ended December 29, 2009 and December 28, 2010, respectively.

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(2)
The liability for membership deposits is the difference between the amount paid by the member and the present value of the refund obligation. The present value of the refund obligation of the membership deposit liability accretes over the nonrefundable term using the effective interest method with an interest rate defined as our weighted average borrowing rate adjusted to reflect a 30-year time frame.

(3)
The ratio of earnings to fixed charges is computed by dividing income (or loss) from continuing operations before income taxes and fixed charges less interest capitalized during such period, net of amortization of previously capitalized interest, by fixed charges. Fixed charges consist of interest, expensed or capitalized, on borrowings (including or excluding deposits, as applicable) and the portion of rental expense that is representative of interest. Fixed charges exceeded earnings by $60.1 million and $20.7 million for the fiscal years ended December 30, 2008 and December 29, 2009, respectively.

(4)
The statement of operations and balance sheet data reflect the ClubCorp Formation from November 30, 2010, which was treated as reorganization of entities under common control.

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RISK FACTORS

        You should carefully consider the risk factors set forth below as well as the other information contained in this prospectus before deciding to tender your outstanding notes in the exchange offer. The risks described below are not the only risks facing us. Any of the following risks could materially and adversely affect our business, financial condition or results of operations. In such a case, the trading price of the notes could decline or we may not be able to make payments of interest and principal on the notes, and you may lose all or part of your original investment.

Risks Relating to the Exchange Offer

If you do not exchange your outstanding notes in the exchange offer, the transfer restrictions currently applicable to your outstanding notes will remain in force, and the market price of your outstanding notes could decline.

        If you do not exchange your outstanding notes for exchange notes in the exchange offer, you will continue to be subject to restrictions on transfer of your outstanding notes as set forth in the offering memorandum distributed in connection with the private offering of the outstanding notes. In general, the outstanding notes may not be offered or sold unless they are registered or exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the outstanding notes under the Securities Act. You should refer to "Prospectus Summary—The Exchange Offer" and "The Exchange Offer" for information about how to tender your outstanding notes.

        The tender of outstanding notes under the exchange offer will reduce the aggregate principal amount of the outstanding notes, which may have an adverse effect upon, and increase the volatility of, the market prices of the outstanding notes due to a reduction in liquidity. In addition, if you do not exchange your outstanding notes in the exchange offer, you will no longer be entitled to exchange your outstanding notes for exchange notes registered under the Securities Act, and you will no longer be entitled to have your outstanding notes registered for resale under the Securities Act.

Risks Related to our Indebtedness and the Notes

Our level of indebtedness could adversely affect our ability to raise additional capital to fund our operations, limit our ability to plan for and react to changes in the economy, our industry or our business and prevent us from meeting our obligations under the notes.

        As of December 28, 2010, we were significantly leveraged and our total indebtedness was approximately $783.3 million. Our substantial degree of leverage could have important consequences for you, including the following:

    •
    it may limit our ability to obtain additional debt or equity financing for working capital, capital expenditures, product development, debt service requirements, acquisitions or general corporate or other purposes;

    •
    a substantial portion of our cash flows from operations will be dedicated to the payment of principal and interest on our indebtedness and will not be available for other purposes, including our operations, capital expenditures, and other business opportunities;

    •
    the debt service requirements of our other indebtedness could make it more difficult for us to satisfy our financial obligations, including those related to the notes;

    •
    certain of our borrowings, including borrowings under our secured credit facilities, are at variable rates of interest, exposing us to the risk of increased interest rates;

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    •
    it may limit our flexibility in planning for, or our ability to adjust to, changes in our business or the industry in which we operate, and place us at a competitive disadvantage compared to our competitors that have less debt; and

    •
    we may be vulnerable to a downturn in general economic conditions or in our business, or we may be unable to carry out capital spending that is important to our growth.

        Although our total indebtedness decreased as a result of the ClubCorp Formation, our interest expense is substantially higher after giving effect to the ClubCorp Formation, as compared to our interest expense for prior periods, as a result of higher aggregate interest rates on our debt.

We may not be able to generate sufficient cash to service all of our indebtedness, including the notes, and be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.

        Our ability to make scheduled payments or to refinance our debt obligations depends on our financial and operating performance, which is subject to prevailing economic and competitive conditions and to certain financial, business and other factors beyond our control. We cannot assure you that we will maintain a level of cash flows from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness. See "Forward-Looking Statements" and "Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources." If our cash flows and capital resources are insufficient to fund our debt service obligations, we may be forced to reduce or delay capital expenditures, sell assets or operations, seek additional capital or restructure or refinance our indebtedness, including the notes. We cannot assure you that we would be able to take any of these actions, that these actions would be successful and permit us to meet our scheduled debt service obligations or that these actions would be permitted under the terms of our existing or future debt agreements, including our secured credit facilities or the indenture that governs the notes. In the absence of such operating results and resources, we could face substantial liquidity problems and might be required to dispose of material assets or operations to meet our debt service and other obligations. Our secured credit facilities and the indenture that governs the notes restrict our ability to dispose of assets and use the proceeds from the disposition. We may not be able to consummate those dispositions or to obtain the proceeds which we could realize from them and these proceeds may not be adequate to meet any debt service obligations then due. See "Description of Other Indebtedness" and "Description of the Notes."

        If we cannot make scheduled payments on our debt, we will be in default and, as a result:

    •
    our debt holders could declare all outstanding principal and interest to be due and payable;

    •
    the lenders under our secured credit facilities could terminate their commitments to lend us money and foreclose against the assets securing their borrowings; and

    •
    we could be forced into bankruptcy or liquidation, which could result in you losing your investment in the notes.

Despite current indebtedness levels, we may still be able to incur substantially more debt. This could further exacerbate the risks described above.

        We and our subsidiaries may be able to incur substantial additional indebtedness in the future. The terms of the indenture governing the notes do not fully prohibit us or our subsidiaries from doing so. If we incur any additional indebtedness that ranks pari passu with the notes, the holders of that debt will be entitled to share ratably with you in any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding-up of us. This may have the effect of reducing the amount of proceeds paid to you. On November 30, 2010, we entered into a senior secured debt facility with Citigroup ("Senior Secured Credit Facility") comprised of (i) a $310.0 million term loan facility and (ii) a revolving credit facility with a maximum borrowing limit of $50.0 million, which

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includes letter of credit and swing line facilities. As of December 28, 2010, $32.7 million was available for borrowing under the revolving credit facility. Additionally, ClubCorp has the option to increase the term loan facility by up to $50.0 million and the revolving credit facility by up to an additional $25.0 million, both subject to conditions and restrictions in the Senior Secured Credit Facility. If new debt is added to our current debt levels, the related risks that we and our subsidiaries now face could intensify. The subsidiaries that guarantee the notes also guarantee under our Senior Secured Credit Facility. See "Description of Other Indebtedness" and "Description of the Notes."

Restrictive covenants may adversely affect our operations.

        Our Senior Secured Credit Facility and the indenture governing the notes contain various covenants that limit our ability to, among other things:

    •
    incur or guarantee additional indebtedness;

    •
    pay dividends or distributions on capital stock or redeem or repurchase capital stock;

    •
    make investments;

    •
    create restrictions on the payment of dividends or other amounts to us;

    •
    sell stock of our subsidiaries;

    •
    transfer or sell assets;

    •
    create liens;

    •
    enter into transactions with affiliates; and

    •
    enter into mergers or consolidations.

        In addition, the restrictive covenants in our Senior Secured Credit Facility require us to maintain specified financial ratios and satisfy other financial condition tests. Our ability to meet those financial ratios and tests can be affected by events beyond our control, and we cannot assure you that we will meet them. A breach of any of these covenants could result in a default under our Senior Secured Credit Facility. Upon the occurrence of an event of default under our Senior Secured Credit Facility, the lenders could elect to declare all amounts outstanding thereunder to be immediately due and payable and terminate all commitments to extend further credit. If we were unable to repay those amounts, the lenders under our Senior Secured Credit Facility could proceed against the collateral granted to them to secure that indebtedness. We have pledged a significant portion of our assets as collateral under our Senior Secured Credit Facility. If the lenders under our Senior Secured Credit Facility accelerate the repayment of borrowings, we cannot assure you that we will have sufficient assets to repay our Senior Secured Credit Facility and our other indebtedness, including the notes, or borrow sufficient funds to refinance such indebtedness. Even if we are able to obtain new financing, it may not be on commercially reasonable terms, or terms that are acceptable to us. See "Description of Other Indebtedness."

The notes are structurally subordinated to all indebtedness of our existing or future subsidiaries that do not become guarantors of the notes.

        You will not have any claim as a creditor against any of our existing subsidiaries that are not guarantors of the notes or against any of our future subsidiaries that do not become guarantors of the notes. Indebtedness and other liabilities, including trade payables, whether secured or unsecured, of those subsidiaries are effectively senior to your claims against those subsidiaries.

        For the fiscal year ended December 28, 2010, our non-guarantor subsidiaries collectively represented approximately 6.6% of our consolidated revenues. At December 28, 2010, our

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non-guarantor subsidiaries collectively represented 8.2% of our total assets, excluding intercompany items, and had approximately $135.9 million of outstanding total liabilities, including trade payables, all of which is structurally senior to the notes.

        In addition, the indenture governing the notes, subject to some limitations, permits these subsidiaries to incur additional indebtedness and does not contain any limitation on the amount of other liabilities, such as trade payables, that may be incurred by these subsidiaries.

Your right to receive payments on the notes is effectively junior to those lenders who have a security interest in our assets.

        Our obligations under the notes and the guarantors' obligations under their guarantees of the notes are unsecured. As a result, the notes and the related guarantees are effectively subordinated to all of our and the guarantors' secured indebtedness to the extent of the value of the assets securing such indebtedness. Our obligations under our Senior Secured Credit Facility are secured by a pledge of substantially all of our and our guarantors' tangible and intangible assets. In the event that we or a guarantor are declared bankrupt, become insolvent or are liquidated or reorganized, our obligations under our Senior Secured Credit Facility and any other secured obligations will be entitled to be paid in full from our assets or the assets of such guarantor, as the case may be, pledged as security for such obligation before any payment may be made with respect to the notes. Holders of the notes would participate ratably in our remaining assets or the remaining assets of the guarantor, as the case may be, with all holders of unsecured indebtedness that are deemed to rank equally with the notes, based upon the respective amount owed to each creditor. In addition, if we default under our Senior Secured Credit Facility, the lenders could declare all of the funds borrowed thereunder, together with accrued interest, immediately due and payable. If we were unable to repay such indebtedness, the lenders could foreclose on the pledged assets to the exclusion of holders of the notes, even if an event of default exists under the indenture under which the notes were issued at such time. Furthermore, if the lenders foreclose and sell the pledged equity interests in any subsidiary guarantor under the notes, then that subsidiary guarantor will be released from its guarantee of the notes automatically and immediately upon such sale. In any such event, because the notes will not be secured by any of our assets or the equity interests in subsidiary guarantors, it is possible that there would be no assets remaining from which your claims could be satisfied or, if any assets remained, they might be insufficient to satisfy your claims fully. See "Description of Other Indebtedness."

        As of December 28, 2010, ClubCorp, and its guarantor subsidiaries had approximately $745.1 million of indebtedness and our non-guarantor subsidiaries had $38.2 million of indebtedness, of which $32.0 million was non-recourse to us. The indenture governing the notes permits the incurrence of substantial additional indebtedness by us and our restricted subsidiaries in the future, including secured indebtedness. Any secured indebtedness incurred would rank senior to the notes to the extent of the value of the assets securing such indebtedness.

If we default on our obligations to pay our indebtedness we may not be able to make payments on the notes.

        Any default under the agreements governing our indebtedness, including a default under our Senior Secured Credit Facility that is not waived by the required lenders, and the remedies sought by the holders of such indebtedness, could make us unable to pay principal, premium, if any, and interest on the notes and substantially decrease the market value of the notes. If we are unable to generate sufficient cash flows and are otherwise unable to obtain funds necessary to meet required payments of principal, premium (if any) and interest on our indebtedness, or if we otherwise fail to comply with the various covenants, including financial and operating covenants, in the instruments governing our indebtedness (including covenants in the indentures and our Senior Secured Credit Facility), we could be in default under the terms of the agreements governing such indebtedness, including our Senior Secured Credit Facility and the indenture governing the notes. In the event of such default, the holders

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of such indebtedness could elect to declare all the funds borrowed thereunder to be due and payable, together with accrued and unpaid interest, the lenders under our Senior Secured Credit Facility could elect to terminate their commitments thereunder and cease making further loans and institute foreclosure proceedings against our assets and we could be forced into bankruptcy or liquidation. If our operating performance declines, we may in the future need to obtain waivers from the required lenders under our Senior Secured Credit Facility to avoid being in default. If we breach our covenants under our Senior Secured Credit Facility and seek a waiver, we may not be able to obtain a waiver from the required lenders. If this occurs, we would be in default under our Senior Secured Credit Facility, the lenders could exercise their rights, as described above, and we could be forced into bankruptcy or liquidation. See "Description of Other Indebtedness" and "Description of the Notes."

The exchange notes will be issued with original issue discount for U.S. federal income tax purposes.

        The exchange notes will be issued with original issue discount, or OID, for U.S. federal income tax purposes. U.S. Holders (as defined in "Material U.S. Federal Income and Estate Tax Considerations") will be required to include amounts representing the OID in gross income on a constant yield basis for U.S. federal income tax purposes, in advance of the receipt of cash payments to which such income is attributable. For more information, see "Material U.S. Federal Income and Estate Tax Considerations."

We may not be able to repurchase the notes upon a change of control.

        If a change of control event occurs, as described in "Description of the Notes—Repurchase at the Option of Holders—Change of Control," we will be required to offer to repurchase all outstanding notes at 101% of their principal amount, plus accrued and unpaid interest. We may not be able to repurchase the notes upon a change of control triggering event because we may not have sufficient funds. Further, we may be contractually restricted under the terms of our Senior Secured Credit Facility from repurchasing all of the notes tendered by holders upon a change of control event. Accordingly, we may not be able to satisfy our obligations to purchase your notes unless we are able to refinance or obtain waivers under our Senior Secured Credit Facility. Our failure to repurchase the notes upon a change of control event would cause a default under the indenture governing the notes and a cross-default under our Senior Secured Credit Facility. Our Senior Secured Credit Facility also provides that a change of control, as defined in such agreement, will be a default that permits lenders to accelerate the maturity of borrowings thereunder and, if such debt is not paid, to enforce security interests in the collateral securing such debt, thereby limiting our ability to raise cash to purchase the notes, and reducing the practical benefit of the offer-to-purchase provisions to the holders of the notes. Any of our future debt agreements may contain similar provisions. In addition, the change of control provisions in the indenture governing the notes may not protect you from certain important corporate events, such as a leveraged recapitalization (which would increase the level of our indebtedness), reorganization, restructuring, merger or other similar transaction. Such a transaction may not involve a change in voting power or beneficial ownership or, even if it does, may not involve a change that constitutes a "change of control" as defined in the indenture governing the notes that could trigger our obligation to repurchase the notes. If an event occurs that does not constitute a "change of control" as defined in the indenture governing the notes, we will not be required to make an offer to repurchase the notes and you may be required to continue to hold your notes despite the event. See "Description of Other Indebtedness" and "Description of the Notes—Repurchase at the Option of Holders—Change of Control."

Variable rate indebtedness subjects us to interest rate risk, which could cause our debt service obligations to increase significantly.

        Certain of our borrowings, primarily borrowings under our Senior Secured Credit Facility, are subject to variable rates of interest and expose us to interest rate risk. If interest rates increase, our

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debt service obligations on our variable rate indebtedness would increase even though the amount borrowed remained the same, and our net income would decrease. The interest rate on our Senior Secured Credit Facility is the higher of (i) 6.0% ("Floor") or (ii) an elected LIBOR plus a margin of 4.5% less the impact of the interest rate cap agreement that limits our exposure on the elected LIBOR to 3.0% on a notional amount of $155.0 million. In connection with the Floor, if the LIBOR rate exceeds 1.5%, our interest rate will become variable. A hypothetical 0.50% increase in LIBOR rates applicable to borrowings under our variable rate debt instruments would result in an estimated increase of $0.2 million per year of interest expense.

Federal and state fraudulent transfer laws permit a court to void the notes and the guarantees, and, if that occurs, you may not receive any payments on the notes.

        The issuance of the notes and the guarantees may be subject to review under federal and state fraudulent transfer and conveyance statutes. While the relevant laws may vary from state to state, under such laws the payment of consideration will be a fraudulent conveyance if (1) we paid the consideration with the intent of hindering, delaying or defrauding creditors or (2) we or any of our guarantors, as applicable, received less than reasonably equivalent value or fair consideration in return for issuing either the notes or a guarantee and, in the case of (2) only, one of the following is also true:

    •
    we or any of our guarantors were insolvent or rendered insolvent by reason of the incurrence of the indebtedness;

    •
    payment of the consideration left us or any of our guarantors with an unreasonably small amount of capital to carry on the business; or

    •
    we or any of our guarantors intended to, or believed that we or it would, incur debts beyond our or its ability to pay as they mature.

        If a court were to find that the issuance of the notes or a guarantee was a fraudulent conveyance, the court could void the payment obligations under the notes or such guarantee or subordinate the notes or such guarantee to presently existing and future indebtedness of ours or such guarantor, or require the holders of the notes to repay any amounts received with respect to the notes or such guarantee. In the event of a finding that a fraudulent conveyance occurred, you may not receive any repayment on the notes. Further, the voidance of the notes could result in an event of default with respect to our other debt and that of our guarantors that could result in acceleration of such debt.

        Generally, an entity would be considered insolvent if at the time it incurred indebtedness:

    •
    the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all its assets;

    •
    the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts and liabilities, including contingent liabilities, as they become absolute and mature; or

    •
    it could not pay its debts as they become due.

        We cannot be certain as to the standards a court would use to determine whether or not we or the guarantors were solvent at the relevant time, or regardless of the standard that a court uses, that the issuance of the notes and the guarantees would not be subordinated to our or any guarantor's other debt.

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        If the guarantees were legally challenged, any guarantee could also be subject to the claim that, since the guarantee was incurred for our benefit, and only indirectly for the benefit of the guarantor, the obligations of the applicable guarantor were incurred for less than fair consideration. A court could thus void the obligations under the guarantees, subordinate them to the applicable guarantor's other debt or take other action detrimental to the holders of the notes.

Your ability to transfer the notes may be limited by the absence of an active trading market, and there is no assurance that any active trading market will develop for the notes.

        The exchange notes are a new issue of securities for which there is no established public market. We do not intend to have the exchange notes listed on a national securities exchange or to arrange for quotation on any automated dealer quotation systems. The initial purchaser of the outstanding notes has advised us that they intend to make a market in the exchange notes, as permitted by applicable laws and regulations; however, the initial purchaser is not obligated to make a market in the exchange notes and it may discontinue their market making activities at any time without notice. In addition, such market making activities may be limited during the exchange offer or while the effectiveness of a shelf registration statement is pending. Therefore, we cannot assure you as to the development or liquidity of any trading market for the exchange notes. The liquidity of any market for the exchange notes will depend on a number of factors, including:

    •
    the number of holders of notes;

    •
    our operating performance and financial condition;

    •
    our ability to complete the exchange offer;

    •
    the market for similar securities;

    •
    the interest of securities dealers in making a market in the notes; and

    •
    prevailing interest rates.

        Historically, the market for non-investment grade debt has been subject to disruptions that have caused substantial volatility in the prices of securities similar to the notes. We cannot assure you that the market, if any, for the exchange notes will be free from similar disruptions or that any such disruptions may not adversely affect the prices at which you may sell your exchange notes. Therefore, we cannot assure you that you will be able to sell your exchange notes at a particular time or the price that you receive when you sell will be favorable.

Ratings of the notes may affect the market price and marketability of the notes.

        The notes are currently rated by Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. Such ratings are limited in scope, and do not address all material risks relating to an investment in the notes, but rather reflect only the view of each rating agency at the time the rating is issued. An explanation of the significance of such rating may be obtained from such rating agency. There is no assurance that such credit ratings will remain in effect for any given period of time or that such ratings will not be lowered, suspended or withdrawn entirely by the rating agencies, if, in each rating agency's judgment, circumstances so warrant. It is also possible that such ratings may be lowered in connection with the application of the proceeds of this offering or in connection with future events, such as future acquisitions. Holders of notes will have no recourse against us or any other parties in the event of a change in or suspension or withdrawal of such ratings. Any lowering, suspension or withdrawal of such ratings may have an adverse effect on the market price or marketability of the notes.

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Risks Related to Our Business

Economic recessions or downturns could harm our business, financial condition and results of operations, and the recent economic downturn and financial crisis has negatively affected and will continue to negatively affect our business, financial condition and results of operations.

        A substantial portion of our revenue is derived from discretionary or leisure spending by our members and guests and such spending can be particularly sensitive to changes in general economic conditions. The recent global recession and financial crisis has led to slower economic activity, increased unemployment, concerns about inflation and energy costs, decreased business and consumer confidence, reduced corporate profits and capital spending, adverse business conditions and lower levels of liquidity in many financial markets, which has negatively affected our business, financial condition and results of operations. For example, for the fiscal year ended December 28, 2010, we experienced 17.2% and 24.2% attrition in member count in our golf and country clubs and business, sports and alumni clubs, respectively, as consumers and businesses cut back on discretionary spending. The continuation of this global recession and financial crisis may lead to further increases in unemployment and loss of consumer confidence which would likely translate into additional resignations of existing members, a decrease in the rate of new memberships and reduced spending by our members. As a result, our business, financial condition and results of operations could continue to be materially adversely affected if the downturn continues.

        Our businesses will remain susceptible to future economic recessions or downturns, and any significant adverse shift in general economic conditions, whether local, regional or national, would likely have a material adverse effect on our business, financial condition and results of operations. During such periods of adverse economic conditions, we may be unable to increase membership dues or the price of our products and services and experience resignations of existing members, a decrease in the rate of new memberships or reduced spending by our members, any of which may result in, among other things, decreased revenues and financial losses. In addition, during periods of adverse economic conditions, we may have difficulty accessing financial markets or face increased funding costs, which could make it more difficult or impossible for us to obtain funding for additional investments and harm our results of operations.

We may not be able to attract and retain club members, which could harm our business, financial condition and results of operations.

        Our success depends on our ability to attract and retain members at our clubs and maintain or increase usage of our facilities. Changes in consumer tastes and preferences, particularly those affecting the popularity of golf and private dining, and other social and demographic trends could adversely affect our business. Historically, we have experienced varying levels of membership enrollment and attrition rates and, in certain areas, decreased levels of usage of our facilities. Significant periods where attrition rates exceed enrollment rates or where facilities usage is below historical levels would have a material adverse effect on our business, results of operations and financial condition. By comparison, for the fiscal year ended December 28, 2010, 47.4% of our total operating revenues came from monthly membership dues. During the same period, 24.2% of our business, sports and alumni club memberships (17,535 memberships), and 17.2% of our private country club and semi-private golf memberships (13,665 memberships) were cancelled, resulting in a net loss in memberships of 5.2% and 1.2%, respectively, after the addition of new memberships. If we cannot attract new members or retain our existing members, our business, financial condition and results of operations could be harmed.

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Competition in the industry in which we compete could have a material adverse effect on our business and results of operations.

        We operate in a highly competitive industry, and compete primarily on the basis of management expertise, reputation, featured facilities, location, quality and breadth of member product offerings and price. As a result, competition for market share in the industry in which we compete is intense. In order to succeed, we must take market share from local and regional competitors and sustain our membership base in the face of increasing recreational alternatives available to our existing and potential members.

        Our business clubs compete on a local and regional level with restaurants and other business and social clubs. The number and variety of competitors in this business varies based on the location and setting of each facility, with some situated in intensely competitive upscale urban areas characterized by frequent innovations in the products and services offered by competing restaurants and other business, dining and social clubs. In addition, in most regions these businesses are in constant flux as new restaurants and other social and meeting venues open or expand their amenities. As a result of these characteristics, the supply in a given region often exceeds the demand for such facilities, and any increase in the number or quality of restaurants and other social and meeting venues, or the products and services they provide, in a given region could significantly impact the ability of our clubs to attract and retain members, which could harm our business and results of operations.

        Our country clubs and golf facilities compete on a local and regional level with other country clubs and golf facilities. The level of competition in the country club and golf facility business varies from region to region and is subject to change as existing facilities are renovated or new facilities are developed. An increase in the number or quality of similar clubs and other facilities in a particular region could significantly increase competition, which could have a negative impact on our business and results of operations.

        Our results of operations also could be affected by a number of additional competitive factors, including the availability of, and demand for, alternative venues for recreational pursuits, such as multi-use sports and athletic centers. In addition, individual member-owned private clubs may be able to create a perception of exclusivity that we have difficulty replicating given the diversity of our product portfolio and the scope of our holdings. To the extent these alternatives succeed in diverting actual or potential members away from our facilities or affect our membership rates, our business and results of operations could be harmed.

Changes in consumer spending patterns, particularly discretionary expenditures for leisure, travel and recreation, are susceptible to factors beyond our control that may reduce demand for our products and services.

        Consumer spending patterns, particularly discretionary expenditures for leisure, travel and recreation, are particularly susceptible to factors beyond our control that may reduce demand for our products and services, including demand for memberships, golf, vacation and business travel and food and beverage sales. These factors include:

    •
    low consumer confidence;

    •
    depressed housing prices;

    •
    changes in the desirability of particular locations, residential neighborhoods, office space, or travel patterns of members;

    •
    decreased corporate budgets and spending and cancellations, deferrals or renegotiations of group business (e.g., industry conventions);

    •
    natural disasters, such as earthquakes, tornados, hurricanes and floods;

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    •
    outbreaks of pandemic or contagious diseases, such as avian flu, severe acute respiratory syndrome (SARS) and H1N1 (swine) flu;

    •
    war, terrorist activities or threats and heightened travel security measures instituted in response to these events; and

    •
    the financial condition of the airline, automotive and other transportation-related industries and its impact on travel.

        These factors and other global and national conditions can adversely affect, and from time to time have adversely affected, individual properties, particular regions or our business as a whole. For example, during the recent recession, many businesses dramatically decreased the number of corporate events and meetings hosted at facilities such as convention centers, hotels, resorts and retreats in an effort to cut costs and in response to public opinion relating to excess corporate spending, which negatively impacted the amount of business for such facilities, including certain of our facilities. Any one or more of these factors could limit or reduce demand or the rates our clubs are able to charge for memberships or services, which could harm our business and results of operations.

Our ability to attract and retain members depends heavily on successfully locating our clubs in suitable locations, and any impairment of a club location, including any decrease in member or customer traffic, could impact our results of operations.

        Our approach to identifying locations for our clubs typically favors locations and lifestyle centers where our facilities can become a part of the community. As a result, our clubs are typically located near urban and residential centers that we believe are consistent with our members' lifestyle choices. Memberships and sales at these locations are derived, in part, from proximity to key local landmarks, business centers, facilities and residential areas. Club locations may become unsuitable due to, and such locations' results of operations may be harmed by, among other things:

    •
    economic downturns in a particular area;

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    competition from nearby entertainment venues;

    •
    changing demographics in a particular market or area;

    •
    changing lifestyle choices of consumers in a particular market; and

    •
    the closing or declining of popularity of other businesses and entertainment venues located near our clubs.

For example, we mutually agreed to terminate our agreement to manage the Fairlane Club, a business club in downtown Dearborn, Michigan, a city particularly hard hit by the recent recession. The club generated a significant portion of its revenues from members who worked in the auto industry. Changes in areas around our club locations could render such locations unsuitable and cause memberships at such clubs to decline, which would harm our results of operations.

We have significant operations concentrated in certain geographic areas, and any disruption in the operations of our clubs in any of these areas could harm our results of operations.

        We currently operate multiple clubs in several metropolitan areas, including fifteen in and around Dallas, Texas, thirteen near Houston, Texas, eight in the greater Los Angeles, California region, four near Sacramento, California, four in and around Phoenix, Arizona, eight in the greater Atlanta, Georgia region and four near Tampa, Florida, with potential future expansion in current and new markets. As a result, any prolonged disruption in the operations of our centers in any of these markets, whether due to technical difficulties, power failures or destruction or damage to the centers as a result of a natural disaster, fire or any other reason, could harm our results of operations. In addition, many

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of the metropolitan areas where we operate clubs have been disproportionately affected, and may continue to be disproportionately affected by the economic downturn and the decline in home prices and increase in foreclosure rates. Concentration in these markets increases our exposure to adverse developments related to competition, as well as economic and demographic changes in these areas.

Unusual weather patterns and extreme weather events, as well as periodic and quasi-periodic weather patterns, such as those commonly associated with the El Niño/La Niña-Southern Oscillation, could adversely affect the value of our golf courses or negatively impact our business and results of operations.

        Our operations and results are susceptible to non-seasonal and severe weather patterns. Extreme weather events or patterns in a given region, such as heavy rains, prolonged snow accumulations, extended heat waves and high winds, could reduce our revenues for that region by interrupting activities at affected properties which could negatively impact our business and results of operations.

        One factor that specifically affects our real estate investments in golf courses is the availability of water. Turf grass conditions must be satisfactory to attract play on our golf courses, which requires significant amounts of water. Our ability to irrigate a course could be adversely impacted by a drought or other cause of water shortage, such as the recent drought affecting the western United States. A severe drought of extensive duration experienced in regard to a large number of properties could adversely affect our business and results of operations.

        We also have a high concentration of clubs in California, Florida and Texas, which can experience periods of unusually hot, cold, dry or rainy weather due to a variety of periodic and quasi-periodic global climate phenomenon, such as the El Niño/La Niña-Southern Oscillation. For example, during 2009, clubs in Texas experienced a 17.9% decline in golf operations revenue for the fiscal period starting on October 7, 2009 and ending on November 3, 2009 against the corresponding fiscal period in 2008, due to unusually wet weather attributable to El Niño. If these phenomenon and their impacts on weather patterns persist for extended periods of time, our business and results of operations could be harmed.

Seasonality may adversely affect our business and results of operations.

        Our quarterly results fluctuate as a result of a number of factors. Usage of our country club and golf facilities declines significantly during the first and fourth quarters, when colder temperatures and shorter days reduce the demand for golf and golf-related activities. Our business clubs typically generate a greater share of their yearly revenues in the fourth quarter, which includes the holiday and year-end party season. In addition, the fourth quarter consists of 16 or 17 weeks of operations and the first, second and third fiscal quarters each consist of 12 weeks. As a result of these factors, we usually generate a disproportionate share of our revenues and cash flows in the second, third and fourth quarters of each year and have lower revenues and profits in the first quarter. This seasonality makes our business and results of operations more vulnerable to other risks during the periods of increased member usage due to the larger percentage of revenues we generate during such times.

Our future success is substantially dependent on the continued service of our senior management and key employees.

        The loss of the services of our senior management could make it more difficult to successfully operate our business and achieve our business goals. We also may be unable to retain existing management and key employees, including club managers, membership sales and support personnel, which could result in harm to our member and employee relationships, loss of expertise or know-how and unanticipated recruitment and training costs. In addition, we have not obtained key man life insurance policies for any of our senior management team. As a result, we would have no way to cover the financial loss if we were to lose the services of any members of our senior management team. The

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loss of members of our senior management or key employees or any financial impact resulting therefrom could have an adverse affect on our business and results of operations.

Our large workforce subjects us to risks associated with increases in the cost of labor as a result of increased competition for employees, higher employee turnover rates and required wage increases, lawsuits or labor union activity.

        Labor is our primary property-level operating expense. As of December 28, 2010, we employed approximately 12,400 hourly-wage and salaried employees at our clubs and corporate offices. For the fiscal year ended December 28, 2010, labor-related expense accounted for 47.9% of our total operating expense. If we face labor shortages or increased labor costs because of increased competition for employees, higher employee turnover rates or increases in the federal or state minimum wage or other employee benefits costs (including costs associated with health insurance coverage), our operating expense could increase and our business, financial condition and results of operations could be harmed.

        We are subject to the Fair Labor Standards Act, or FLSA, and various federal and state laws governing such matters as minimum wage requirements, overtime compensation and other working conditions, citizenship requirements, discrimination and family and medical leave. In recent years, a number of companies have been subject to lawsuits, including class action lawsuits, alleging violations of federal and state law regarding workplace and employment matters, overtime wage policies, discrimination and similar matters. A number of these lawsuits have resulted in the payment of substantial damages by the defendants. Similar lawsuits may be threatened or instituted against us from time to time, and we may incur substantial damages and expenses resulting from lawsuits of this type, which could have a material adverse effect on our business, financial condition or results of operations.

        From time to time, we have also experienced attempts to unionize certain of our non-union employees. While these efforts have achieved only limited success to date, we cannot provide any assurance that we will not experience additional and more successful union activity in the future. In addition, future legislation could amend the National Labor Relations Act to make it easier for unions to organize and obtain collectively bargained benefits, which could increase our operating expenses and negatively affect our financial condition and results of operations.

Increases in our cost of goods, rent, utilities and taxes could reduce our operating margins and harm our business, financial condition and results of operations.

        Increases in operating costs due to inflation and other factors may not be directly offset by increased revenue. Our most significant operating costs, other than labor, are our cost of goods, utilities, rent and property taxes. Many, and in some cases all, of the factors affecting these costs are beyond our control.

        Our cost of goods such as food and beverage costs account for a significant portion of our total property-level operating expense. Cost of goods represented 14.3% of our total operating expense for the fiscal year ended December 28, 2010. If our cost of goods increases significantly and we are not able to pass along those increased costs to our members in the form of higher prices or otherwise, our operating margins could suffer, which would have an adverse effect on our business, financial condition and results of operations.

        In addition, rent, which represented 5.8% of our total operating expense for the fiscal year ended December 28, 2010, also accounts for a significant portion of our property-level operating expense. Significant increases in our rent costs would increase our operating expense and our business, financial condition and results of operations may suffer.

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        Utility costs, including water, represented 6.0% of our total operating expense for the fiscal year ended December 28, 2010. The prices of utilities are volatile, and shortages sometimes occur. In particular, municipalities are increasingly placing restrictions on the use of water for golf course irrigation and increasing the cost of water. Significant increases in the cost of our utilities, or any shortages, could interrupt or curtail our operations and lower our operating margins, which could have a negative impact on our business, financial condition and results of operations.

        Each of our properties is subject to real and personal property taxes. During the fiscal year ended December 28, 2010, we paid approximately $17.7 million in property taxes. The real and personal property taxes on our properties may increase or decrease as tax rates change and as our clubs are assessed or reassessed by taxing authorities. If real and personal property taxes increase, our financial condition and results of operations may suffer.

We could be required to make material cash outlays in future periods if the number of initiation deposit refund requests we receive materially increases or if we are required to surrender unclaimed initiation deposits to state authorities under applicable escheatment laws.

        In contrast to initiation fees which are generally non-refundable, initiation deposits paid by new members upon joining one of our clubs are fully refundable after a fixed number of years, typically 30 years, and upon the occurrence of other contract-specific conditions. Historically, only a small percentage of initiation deposits eligible to be refunded have been requested by members. As of December 28, 2010, the amount of initiation deposits that are eligible to be refunded currently or within the next twelve months is $51.7 million on a gross basis. When refunds are requested, we must fund the payment of such amounts from our available cash. If the number of refunds dramatically increases in the future, our financial condition could suffer and the funding requirement for such refunds could strain our cash on hand or otherwise force us to reduce or delay capital expenditures, sell assets or operations or seek additional capital in order to raise the cash necessary to make such refunds. The discounted value of initiation deposits that may be claimed in future years (not including the next twelve months) is $211.6 million. For more information on our initiation deposit amounts, see "Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Off-Balance Sheet Arrangements, Contractual Obligations and Commercial Contracts—Contractual Obligations."

        While we will make a refund to any member whose initiation deposit is eligible to be refunded, we may be subject to various states' escheatment laws with respect to initiation deposits that have not been refunded to members. All states have escheatment laws and generally require companies to remit to the state cash in an amount equal to such unclaimed and abandoned property after a specified period of dormancy. We currently do not remit to states any amounts relating to initiation deposits that are eligible to be refunded to members based upon our interpretation of the applicability of such laws to initiation deposits. The analysis of the potential application of escheatment laws to our initiation deposits is complex, involving an analysis of constitutional and statutory provisions and contractual and factual issues. While we do not believe that such initiation deposits must be escheated, we may be forced to remit such amounts if we are challenged and fail to prevail in our position.

        In addition, 20 separate states have hired an independent agent to conduct an unclaimed and abandoned property audit of our operations. Certain property, such as uncashed payroll checks or uncashed vendor payments are escheatable in the ordinary course and states audit organizations for compliance. If in connection with any such audit the auditor asserts that any or all of the initiation deposits eligible to be refunded to members that have remained unclaimed for the applicable dormancy period, which is a period of 3 or 5 years depending on the state in which a club is located, are to be remitted to such states under applicable escheatment laws, we expect to vigorously defend our position on the matter. However, if we are ultimately unsuccessful in arguing our right to continue holding such amounts, we may be forced to pay such amounts to the claiming states. While the audit is ongoing and

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we believe we have strong arguments against any potential claims for the escheatment of unclaimed initiation deposits made under state escheatment laws, if a material portion of the eligible unclaimed initiation deposits were awarded to any states, our financial condition could be materially and adversely affected and we may be required to reduce or delay capital expenditures, sell assets or operations or seek additional capital in order to raise the corresponding cash required to satisfy such awards. We cannot assure you that we would be able to take any of these actions, that these actions would be successful and permit us to meet such obligations or that these actions would be permitted under the terms of our existing or future debt agreements, including our Senior Secured Credit Facility or the indenture that governs the notes.

We have concentrated our investments in golf-related and business real estate and facilities, which are subject to numerous risks, including the risk that the values of our investments may decline if there is a prolonged downturn in real estate values.

        Our operations consist almost entirely of golf-related and business club facilities that encompass a large amount of real estate holdings. Accordingly, we are subject to the risks associated with holding real estate investments. A prolonged decline in the popularity of golf-related or business club services, such as private dining, could adversely affect the value of our real estate holdings and could make it difficult to sell facilities or businesses.

        Our real estate holdings (including our long-term leaseholds) are subject to risks typically associated with investments in real estate. The investment returns available from equity investments in real estate depend in large part on the amount of income earned and capital appreciation generated by the related properties, and the expenses incurred. In addition, a variety of other factors affect income from properties and real estate values, including governmental regulations, real estate, insurance, zoning, tax and eminent domain laws, interest rate levels and the availability of financing. For example, new or existing real estate zoning or tax laws can make it more expensive and time-consuming to expand, modify or renovate older properties. Under eminent domain laws, governments can take real property. Sometimes this taking is for less compensation than the owner believes the property is worth. Any of these factors could have an adverse impact on our business, financial condition or results of operations.

The illiquidity of real estate may make it difficult for us to dispose of one or more of our properties or negatively affect our ability to profitably sell such properties.

        We may from time to time decide to dispose of one or more of our real estate assets. Because real estate holdings generally, and clubs like ours in particular, are relatively illiquid, we may not be able to dispose of one or more real estate assets on a timely basis. In some circumstances, sales may result in investment losses which could adversely affect our financial condition. The illiquidity of our real estate assets could mean that we continue to operate a facility that management has identified for disposition. Failure to dispose of a real estate asset in a timely fashion, or at all, could adversely affect our business, financial condition and results of operations.

Timing, budgeting and other risks could delay our efforts to develop, redevelop or renovate the properties that we own, or make these activities more expensive, which could reduce our profits or impair our ability to compete effectively.

        We must regularly expend capital to construct, maintain and renovate the properties that we own in order to remain competitive, maintain the value and brand standards of our properties and comply with applicable laws and regulations. In addition, we must periodically upgrade or replace the furniture,

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fixtures and equipment necessary to operate our business. These efforts are subject to a number of risks, including:

    •
    construction delays or cost overruns (including labor and materials) that may increase project costs;

    •
    obtaining zoning, occupancy and other required permits or authorizations;

    •
    governmental restrictions on the size or kind of development;

    •
    force majeure events, including earthquakes, tornados, hurricanes or floods;

    •
    design defects that could increase costs; and

    •
    environmental concerns which may create delays or increase costs.

        These projects create an ongoing need for cash, which if not generated by operations or otherwise obtained is subject to the availability of credit in the capital markets. Our ability to spend the money necessary to maintain the quality of our properties is significantly impacted by the cost and availability of capital, over which we have little control.

        The timing of capital improvements can affect property performance, including membership retention and usage, particularly if we need to close golf courses or a significant number of other facilities, such as ballrooms, meeting spaces or dining areas. Moreover, the investments that we make may fail to improve the performance of the properties in the manner that we expect.

        If we are not able to begin operating properties as scheduled, or if investments harm or fail to improve our performance, our ability to compete effectively would be diminished and our business and results of operations could be adversely affected.

We may seek to expand through acquisitions of and investments in other businesses and properties, or through alliances; and we may also seek to divest some of our properties and other assets, any of which may be unsuccessful or divert our management's attention.

        We intend to consider strategic and complementary acquisitions of and investments in other businesses, properties or other assets. In many cases, we will be competing for these opportunities with third parties that may have substantially greater financial resources than we do. Acquisitions or investments in businesses, properties or assets as well as these alliances are subject to risks that could affect our business, including risks related to:

    •
    spending cash and incurring debt;

    •
    assuming contingent liabilities;

    •
    creating additional expenses; or

    •
    use of management's time and attention.

        We cannot assure you that we will be able to identify opportunities or complete transactions on commercially reasonable terms or at all, or that we will actually realize any anticipated benefits from such acquisitions, investments or alliances. Similarly, we cannot assure you that we will be able to obtain financing for acquisitions or investments on attractive terms or at all, or that the ability to obtain financing will not be restricted by the terms of our Senior Secured Credit Facility or other indebtedness we may incur.

        The success of any such acquisitions or investments will also depend, in part, on our ability to integrate the acquisition or investment with our existing operations. We may experience difficulty with integrating acquired businesses, properties or other assets, including difficulties relating to:

    •
    geographic diversity;

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    •
    integrating information technology systems; and

    •
    retaining members.

We depend on third parties in our joint ventures and collaborative arrangements, which may limit our ability to manage risk.

        As of December 28, 2010, we owned seven properties in partnership with other entities, including joint ventures relating to six of our golf facilities and one of our business clubs, and may in the future enter into further joint venture or other collaborative arrangements related to additional properties. Our investments in these joint ventures may, under certain circumstances, involve risks not otherwise present in our business, including the risk that our partner may become bankrupt, the risk that we may not be able to sell or dispose of our interest as a result of buy/sell rights that may be imposed by the joint venture agreement, the risk that our partner may have economic or other interests or goals that are inconsistent with our interests and goals and the risk that our partner may be able to veto actions which may be in our best interests. Consequently, actions by a co-venturer might subject clubs owned by the joint venture to additional risk. Additionally, we may be unable to take action without the approval of our joint venture partners, or our joint venture partners could take actions binding on the joint venture without our consent. Any of the foregoing could have a negative impact on the joint venture or its results of operations, and subsequently on our business or results of operations.

Our insurance policies may not provide adequate levels of coverage against all claims and we may incur losses that are not covered by our insurance.

        We maintain insurance of the type and in amounts that we believe is commercially reasonable and that is available to businesses in our industry. We carry commercial liability, fire, flood, earthquake, catastrophic wind and extended insurance coverage, as applicable, from solvent insurance carriers on all of our properties. We believe that the policy specifications and insured limits are adequate for foreseeable losses with terms and conditions that are reasonable and customary for similar properties and all of our existing golf and business clubs are insured within industry standards. Nevertheless, market forces beyond our control could limit the scope of the insurance coverage that we can obtain in the future or restrict our ability to buy insurance coverage at reasonable rates. We cannot predict the level of the premiums that we may be required to pay for subsequent insurance coverage, the level of any self-insurance retention applicable thereto, the level of aggregate coverage available or the availability of coverage for specific risks.

        In the event of a substantial loss, the insurance coverage that we carry may not be sufficient to pay the full value of our financial obligations or the replacement cost of any lost investment. As a result, we could lose some or all of the capital we have invested in a property, as well as the anticipated future revenues from the property, we could remain obligated for performance guarantees in favor of third-party property owners or for their debt or other financial obligations and we may not have sufficient insurance to cover awards of damages resulting from our liabilities. If the insurance that we carry does not sufficiently cover damages or other losses, our business, financial condition and results of operations could be harmed.

        In addition, there are types of losses we may incur that cannot be insured against or that we believe are not commercially reasonable to insure. For example, we maintain business interruption insurance, but there can be no assurance that the coverage for a severe or prolonged business interruption at one or more of our clubs would be adequate. Moreover, we believe that insurance covering liability for violations of wage and hour laws is generally not available. These losses, if they occur, could have a material adverse effect on our business, financial condition and results of operations.

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Accidents or injuries in our clubs or in connection with our operations may subject us to liability, and accidents or injuries could negatively impact our reputation and attendance, which would harm our business, financial condition and results of operations.

        There are inherent risks of accidents or injuries at our properties or in connection with our operations, including injuries from premises liabilities such as slips, trips and falls. If accidents or injuries occur at any of our properties, we may be held liable for costs related to the injuries. We maintain insurance of the type and in the amounts that we believe are commercially reasonable and that are available to businesses in our industry, but there can be no assurance that our liability insurance will be adequate or available at all times and in all circumstances to cover any liability for these costs. There can also be no assurance that the liability insurance we have carried in the past was adequate or available to cover any liability related to incidents occurring prior to this offering. Our business, financial condition and results of operations could be harmed to the extent claims and associated expenses resulting from accidents or injuries exceed our insurance recoveries.

Adverse litigation judgments or settlements could impair our financial condition and results of operations or limit our ability to operate our business.

        In the normal course of our business, we are often involved in various legal proceedings. The outcome of these proceedings cannot be predicted. If any of these proceedings were to be determined adversely to us or a settlement involving a payment of a material sum of money were to occur, there could be a material adverse effect on our financial condition and results of operations. Additionally, we could become the subject of future claims by third parties, including current or former members, guests who use our properties, our employees or regulators. Any significant adverse litigation judgments or settlements could limit our ability to operate our business and negatively impact our financial condition and results of operations.

We are jointly and severally liable for the pension liabilities of our affiliate.

        We are jointly and severally liable for pension funding liabilities associated with the Homestead Retirement Plan, relating to one of the resorts we sold in connection with the ClubCorp Formation. As of December 28, 2010, the underfunded amount of the projected benefit obligation for such plan was approximately $7.1 million. Significant adverse changes in the capital markets could cause the actual amount of underfunding to be higher than projected. If we are found liable for any amounts with respect to this plan, the payment of such liability, if material, could adversely affect our financial condition and results of operations.

The failure to comply with regulations relating to public facilities, or the failure to retain licenses relating to our properties may harm our business and results of operations.

        Our business is subject to extensive federal, state and local government regulation in the various jurisdictions in which our clubs are located, including regulations relating to alcoholic beverage control, public health and safety, environmental hazards and food safety. Alcoholic beverage control regulations require each of our clubs to obtain licenses and permits to sell alcoholic beverages on the premises. The failure of a club to obtain or retain its licenses would adversely affect that club's operations and profitability. We may also be subject to dram shop statutes in certain states, which generally provide a person injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages to the intoxicated person. Even though we are covered by general liability insurance, a settlement or judgment against us under a dram shop lawsuit in excess of liability coverage could have a material adverse effect on our operations.

        We are also subject to the Americans with Disabilities Act of 1990, or ADA, which, among other things, may require certain renovations to our facilities to comply with access and use requirements. While we have in the past conducted limited reviews of our properties for compliance with ADA

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requirements, we have not conducted an exhaustive audit or investigation of all of our properties to determine our compliance with the ADA. A determination that we are not in compliance with the ADA or any other similar law or regulation could result in the imposition of fines or an award of damages to private litigants. While we believe we are operating in substantial compliance with current applicable laws and regulations governing working conditions and service to the public, there can be no assurance that our expenses for compliance with these laws and regulations will not increase significantly and harm our business, financial condition and results of operations.

        Businesses operating in the private club industry are also subject to numerous other federal, state and local governmental regulations related to building and zoning requirements and the use and operation of clubs, including changes to building codes and fire and life safety codes, which can affect our ability to obtain and maintain licenses relating to our business and properties. If we were required to make substantial modifications at our clubs to comply with these regulations, our business, financial condition and results of operations could be negatively impacted.

Our operations and our ownership of property subject us to environmental regulation, which creates uncertainty regarding future environmental expenditures and liabilities.

        Our properties and operations are subject to a number of environmental laws. As a result, we may be required to incur costs to comply with the requirements of these laws, such as those relating to water resources, discharges to air, water and land; the handling and disposal of solid and hazardous waste; and the cleanup of properties affected by regulated materials. Under these and other environmental requirements we may be required to investigate and clean up hazardous or toxic substances or chemical releases from current or formerly owned or operated facilities. Environmental laws typically impose cleanup responsibility and liability without regard to whether the relevant entity knew of or caused the presence of the contaminants. We use certain substances and generate certain wastes that may be deemed hazardous or toxic under such laws, and we from time to time have incurred, and in the future may incur, costs related to cleaning up contamination resulting from historic uses of certain of our current or former properties or our treatment, storage or disposal of wastes at facilities owned by others. Our club facilities are also subject to risks associated with mold, asbestos and other indoor building contaminants. The costs of investigation, remediation or removal of regulated materials may be substantial, and the presence of those substances, or the failure to remediate a property properly, may impair our ability to use, transfer or obtain financing regarding our property. We may be required to incur costs to remediate potential environmental hazards, mitigate environmental risks in the future, or comply with other environmental requirements.

        In addition, some projects to improve, upgrade or expand our golf clubs may be subject to environmental review under the National Environmental Policy Act and, for projects in California, the California Environmental Quality Act. Both acts require that a specified government agency study any proposal for potential environmental impacts and include in its analysis various alternatives. Our improvement proposals may not be approved or may be approved with modifications that substantially increase the cost or decrease the desirability of implementing the project.

Changes in laws or regulations, or a failure to comply with any laws and regulations, may harm our business, investments and results of operations.

        We are subject to laws and regulations enacted by national, state and local governments. Compliance with, and monitoring of, applicable laws and regulations may be difficult, time consuming and costly. Those laws and regulations and their interpretation and application may also change from time to time and those changes could have an adverse affect on our business, investments and results of operations. In addition, a failure to comply with applicable laws or regulations, as interpreted and applied, by any of the persons referred to above could have a material adverse effect on our business, investments and results of operations. Furthermore, legislative proposals have been enacted which could

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increase our direct operating costs. For example, we are continuing to assess the impact of recently adopted federal health care legislation on our health care benefit costs. This legislation will likely increase the amount of healthcare expenses paid by us. Significant increases in such costs and increasing medical inflation could adversely impact our operating results. There is no assurance we will be able to manage the costs of such legislation in a manner that will not adversely impact our operating results.

Failure to comply with privacy regulations or maintain the integrity of internal or customer data could result in faulty business decisions, harm to our reputation or subject us to costs, fines or lawsuits.

        We collect and maintain information relating to our members and guests, including personally identifiable information, for various business purposes, including maintaining records of member preferences to enhance our customer service and for billing, marketing and promotional purposes. We also maintain personally identifiable information about our employees. The integrity and protection of our customer, employee and company data is critical to our business. Our members expect that we will adequately protect their personal information, and the regulations applicable to security and privacy are increasingly demanding, both in the United States and in other jurisdictions where we operate. Privacy regulation is an evolving area in which different jurisdictions (within or outside the United States) may subject us to inconsistent compliance requirements. Compliance with applicable privacy regulations may increase our operating costs or adversely impact our ability to service our members and guests and market our properties and services to our members and guests. A theft, loss, fraudulent or unlawful use of customer, employee or company data could harm our reputation or result in remedial and other costs, fines or lawsuits. In addition, non-compliance with applicable privacy regulations by us (or in some circumstances non-compliance by third parties engaged by us) could result in fines or restrictions on our use or transfer of data. Any of these matters could adversely affect our business, financial condition or results of operations.

The operation of our business relies on technology, and operational risks may disrupt our businesses, result in losses or limit our growth.

        We invest in and license technology and systems for property management, procurement, membership records and specialty programs. We believe that we have designed, purchased and installed appropriate information systems to support our business. There can be no assurance, however, that our information systems and technology will continue to be able to accommodate our growth, or that the cost of maintaining such systems will not increase from its current level. Such a failure to accommodate growth, or an increase in costs related to such information systems, could have a material adverse effect on us. Further, there can be no assurance that as various systems and technologies become outdated or new technology is required we will be able to replace or introduce them as quickly as our competitors or within budgeted costs and timeframes. In addition, we rely on third-party service providers for certain aspects of our business. Any interruption or deterioration in the performance of these third parties could impair the quality of our operations and could impact our reputation and hence adversely affect our business and limit our ability to grow.

We may be required to write-off a portion of our goodwill and/or indefinite lived intangible asset balances as a result of a prolonged and severe economic recession.

        Under accounting principles generally accepted in the United States of America ("GAAP"), we are required to test goodwill and indefinite lived intangible assets for impairment annually as well as on an interim basis to the extent factors or indicators become apparent that could reduce the fair value of our goodwill or indefinite lived intangible assets below book value. We evaluate the recoverability of goodwill by estimating the future discounted cash flows of our reporting units and terminal values of the businesses using projected future levels of income as well as business trends and market and economic conditions. We evaluate the recoverability of indefinite lived intangible assets using the

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income approach based upon estimated future revenue streams (see "Management's Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies"). If a severe prolonged economic downturn were to occur it could cause less than expected growth or a reduction in terminal values of our reporting units and could result in a goodwill or indefinite lived intangible asset impairment charge attributable to certain goodwill or indefinite lived intangible assets, negatively impacting our results of operations and stockholders' equity.

We are subject to tax examinations of our tax returns by the Internal Revenue Service and other tax authorities. An adverse outcome of any such audit or examination by the IRS or other tax authority could have a material adverse effect on our results of operations, financial condition and liquidity.

        We are subject to ongoing tax examinations of our tax returns by the Internal Revenue Service and other tax authorities in various jurisdictions and may be subject to similar examinations in the future. We regularly assess the likelihood of adverse outcomes resulting from ongoing tax examinations to determine the adequacy of our provision for income taxes. These assessments can require considerable estimates and judgments. Intercompany transactions associated with provision of services and cost sharing arrangements, as well as those associated with the ClubCorp Formation, are complex and affect our tax liabilities. The calculation of our tax liabilities involves dealing with uncertainties in the application of complex tax laws and regulations in a multitude of jurisdictions. There can be no assurance that the outcomes from ongoing tax examinations will not have an adverse effect on our operating results and financial condition. A difference in the ultimate resolution of tax uncertainties from what is currently estimated could have an adverse effect on our operating results and financial condition.

The cancellation of certain indebtedness in connection with the ClubCorp Formation resulted in cancellation of indebtedness income to us. Should the estimates and judgments used in our calculation of such cancellation of indebtedness income prove to be inaccurate, our financial results could be materially affected.

        Cancellation of debt income occurred for U.S. federal income tax purposes in connection with the consummation of the ClubCorp Formation due to the forgiveness of $342.3 million of debt owed under the then existing secured credit facilities. The cancellation of indebtedness income not otherwise excluded will be deferred as further provided by Section 108 of the Internal Revenue Code of 1986, as amended (the "Code"). The calculation of the amount of cancellation of indebtedness income recognized in connection with the ClubCorp Formation is complex and involves significant judgments and interpretations on our part. Should the estimates and judgments used in our calculation of cancellation of indebtedness income prove to be inaccurate, our financial results could be materially affected.

We are controlled by affiliates of KSL, whose interests may be different than the interests of noteholders.

        By reason of their majority ownership interest in our parent company, KSL and its affiliates have the ability to designate a majority of the members of our board of directors. KSL and its affiliates are able to control actions to be taken by us, including amendments to our certificate of incorporation and bylaws and the approval of significant corporate transactions, including mergers, sales of substantially all of our assets, distributions of our assets, the incurrence of indebtedness and any incurrence of liens on our assets. The interests of KSL and its affiliates may be materially different from the interests of our other stakeholders. For example, KSL and its affiliates may cause us to take actions or pursue strategies that could impact our ability to make payments under the indenture governing the notes and our Senior Secured Credit Facility or that cause a change in control. In addition, to the extent permitted by the indenture governing the notes and our Senior Secured Credit Facility, KSL and its affiliates may cause us to pay dividends rather than make capital expenditures.

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FORWARD-LOOKING STATEMENTS

        All statements (other than statements of historical facts) in this prospectus regarding the prospects of the industry and our prospects, plans, financial position and business strategy may constitute forward-looking statements. In addition, forward-looking statements generally can be identified by the use of forward-looking terminology such as "may," "should," "expect," "intend," "estimate," "anticipate," "believe," "predict," "potential" or "continue" or the negatives of these terms or variations of them or similar terminology. Although we believe that the expectations reflected in these forward-looking statements are reasonable, we cannot assure you that these expectations will prove to be correct. Such statements reflect the current views of our management with respect to our operations, results of operations and future financial performance. The following factors are among those that may cause actual results to differ materially from the forward-looking statements:

        Some of the key factors that could cause actual results to differ from our expectations include:

    •
    adverse conditions affecting the United States economy;

    •
    our ability to attract and retain club members;

    •
    increases in the level of competition we face;

    •
    changes in consumer spending patterns, particularly with respect to demand for products and services;

    •
    impairments to the suitability of our club locations;

    •
    regional disruptions such as power failures, natural disasters or technical difficulties in any of the major areas in which we operate;

    •
    unusual weather patterns, extreme weather events and periodic and quasi periodic weather patterns, such as the El Nino/La Nina Southern Oscillation;

    •
    seasonality of demand for our services and facilities usage;

    •
    the loss of members of our management team or key employees;

    •
    increases in the cost of labor;

    •
    increases in other costs, including costs of goods, rent, utilities and taxes;

    •
    material cash outlays required in connection with refunds of membership initiation deposits;

    •
    decreasing values of our investments;

    •
    illiquidity of real estate holdings;

    •
    timely, costly and unsuccessful development and redevelopment activities at our properties;

    •
    unsuccessful or burdensome acquisitions or divestitures;

    •
    restrictions placed on our ability to limit risk due to joint ventures and collaborative arrangements;

    •
    insufficient insurance coverage and uninsured losses;

    •
    accidents or injuries which occur at our properties;

    •
    adverse judgments or settlements;

    •
    pension plan liabilities;

    •
    our failure to comply with regulations relating to public facilities or our failure to retain the licenses relating to our properties;

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    •
    future environmental regulation, expenditures and liabilities;

    •
    changes in or failure to comply with laws and regulations relating to our business and properties;

    •
    failure to comply with privacy regulations or maintain the integrity of internal customer data;

    •
    sufficiency and performance of the technology we own or license;

    •
    write-offs of goodwill;

    •
    cancellation of certain indebtedness will result in cancellation of indebtedness income;

    •
    risks related to tax examinations by the Internal Revenue Service;

    •
    the ownership of a majority of our equity by a single shareholder;

    •
    our substantial indebtedness, which may adversely affect our financial condition, our ability to operate our business, react to changes in the economy or our industry and pay our debts and could divert our cash flows from operations for debt payments;

    •
    our need to generate cash to service our indebtedness;

    •
    the incurrence by us or our subsidiaries of substantially more debt, which could further exacerbate the risks associated with our substantial leverage;

    •
    restrictions in our debt agreements that limit our flexibility in operating our business; and

    •
    other factors detailed herein.

        All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements included in this prospectus. These forward-looking statements speak only as of the date of this prospectus. We do not intend to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise, unless the securities laws require it to do so.

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 USE OF PROCEEDS

        We will not receive any cash proceeds from the issuance of the exchange notes pursuant to the exchange offer. In consideration for issuing the exchange notes as contemplated in this prospectus, we will receive in exchange a like principal amount of outstanding notes, the terms of which are identical in all material respects to the exchange notes, except that the exchange notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions, registration rights and additional payments upon a failure to fulfill certain of our obligations under the registration rights agreement. The outstanding notes surrendered in exchange for the exchange notes will be retired and canceled and cannot be reissued. Accordingly, the issuance of the exchange notes will not result in any change in our capitalization.


CAPITALIZATION

        The following table sets forth our cash and cash equivalents and total capitalization as of December 28, 2010. The information in this table should be read in conjunction with "Selected Financial Data," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our financial statements and related notes included elsewhere in this prospectus.

 
   As of December 28,
2010 		 
 
   (in thousands)
  

Cash and cash equivalents

   $ 56,531  
       

Long-term debt:

        
 

10% senior notes due 2018

   $ 415,000  
 

Borrowings under Senior Secured Credit Facility (including current portion)(1)

     310,000  
 

Other long-term debt

     58,274  
       
   

Total long-term debt

     783,274  

Total equity

     231,029  
       

Total capitalization

   $ 1,014,303  
       
(1)
Our Senior Secured Credit Facility consists of a $310.0 million term loan facility and a $50.0 million revolving credit facility. In connection with the ClubCorp Formation, we borrowed $310.0 million of term loans under our Senior Secured Credit Facility. As of December 28, 2010, we also had $17.3 million of standby letters of credit outstanding which reduces the availability under our revolving credit facility. See "Description of Other Indebtedness."

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UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL DATA

        In connection with the ClubCorp Formation, beginning on November 30, 2010, ClubCorp is incurring higher interest expense due to the issuance of the senior notes and the Senior Secured Credit Facility. Had this transaction occurred at the beginning of the fiscal year ended December 28, 2010, ClubCorp's pro forma interest expense would have been $88.4 million for the fiscal year ended December 28, 2010 compared to actual interest expense of $57.2 million. This higher pro forma interest expense for the pro forma period is due to higher interest rates on the new indebtedness incurred compared to the interest rates applicable to the loans under our prior credit facility.


SELECTED FINANCIAL DATA

        The following table sets forth our selected financial data for the periods presented. Our fiscal year consists of a 52/53 week period ending on the last Tuesday of December. For 2008, our fiscal year was comprised of the 53 weeks ended December 30, 2008. For 2006, 2007, 2009 and 2010, our fiscal years were comprised of the 52 weeks ended December 26, 2006, December 25, 2007, December 29, 2009 and December 28, 2010, respectively.

        On December 26, 2006, ClubCorp, Inc. consummated an Agreement and Plan of Merger (the "Merger") with affiliates of KSL. As a result of the Merger, assets and liabilities of ClubCorp, Inc. were recorded at fair values. The results of operations and balance sheet data for periods prior to December 26, 2006 relate to the "Predecessor." The balance sheet data as of December 26, 2006 and thereafter and results of operations data for the period ended December 25, 2007 and thereafter reflect the results of operations and balance sheet data of the "Successor."

        The statements of operations data set forth below for the fiscal years ended December 30, 2008, December 29, 2009 and December 28, 2010, and the balance sheet data as of December 29, 2009 and December 28, 2010, are derived from our audited consolidated financial statements that are included elsewhere in this prospectus. The consolidated statements of operations data set forth below for the fiscal years ended December 26, 2006 and December 25, 2007 and the consolidated balance sheet data as of December 26, 2006, December 25, 2007 and December 30, 2008 are derived from our unaudited consolidated financial statements not included in this prospectus. The unaudited consolidated financial statements were prepared on a basis consistent with our audited consolidated financial statements and include, in the opinion of management, all adjustments necessary for the fair presentation of the financial information contained in those statements.

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        Prospective investors should read these selected financial data together with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our financial statements and the related notes included elsewhere in this prospectus.

 
   Predecessor   Successor  
 
   Fiscal Years Ended(1)  
 
   December 26,
2006 		  December 25,
2007 		  December 30,
2008 		  December 29,
2009 		  December 28,
2010(3) 		 
 
   (in thousands)
  

Statements of Operations Data:

                                

Revenues:

                                

Club operations

   $ 532,098   $ 538,817   $ 560,862   $ 515,388   $ 501,733  

Food and beverage

     215,095     224,050     218,960     191,778     192,022  

Other revenues

     14,687     4,282     3,637     2,467     2,882  
                       

Total revenues

     761,880     767,149     783,459     709,633     696,637  
                       

Club operating costs exclusive of depreciation

     534,634     516,469     530,152     461,260     458,241  

Cost of food and beverage sales exclusive of depreciation

     64,218     63,226     63,195     61,209     60,596  

Depreciation and amortization

     67,024     99,940     101,724     98,619     92,673  

Provision for doubtful accounts

     2,184     2,851     4,550     4,815     3,248  

Loss (gain) on disposals and acquisitions of assets

     4,744     8,858     3,880     6,473     (5,351 )

Impairment of assets

     —     —     2,642     11,808     9,243  

Merger related expenses

     62,394     —     —     —     —  

Selling, general and administrative expenses

     45,349     48,970     45,136     39,266     38,946  
                       

Operating (loss) income from continuing operations

     (18,667 )   26,835     32,180     26,183     39,041  

Interest and investment income

     8,006     10,540     4,290     2,684     714  

Equity in earnings from unconsolidated ventures

     2,383     851     1,514     706     1,309  

Interest expense

     (31,166 )   (105,408 )   (94,583 )   (58,383 )   (57,165 )

Merger related financing costs

     (26,073 )   —     —     —     —  

Change in fair value of interest rate cap agreements

     —     (8,375 )   (10,454 )   2,624     (3,529 )

Gain on extinguishment of debt

     —     —     —     —     334,412  

Other income

     1,042     220     7,387     6,006     3,929  
                       

(Loss) income before taxes

     (64,475 )   (75,337 )   (59,666 )   (20,180 )   318,711  

Income tax benefit (expense)

     104,077     24,939     17,803     958     (57,109 )
                       

Income (loss) from continuing operations

     39,602     (50,398 )   (41,863 )   (19,222 )   261,602  

(Loss) income from discontinued operations, net of tax

     (7,562 )   (407 )   (23,584 )   (795 )   54  

Loss from discontinued Non-Core Entities, net of tax

     (33,544 )   (3,115 )   (4,134 )   (11,487 )   (8,779 )
                       

Net income (loss)

   $ (1,504 ) $ (53,920 ) $ (69,581 ) $ (31,504 ) $ 252,877  
                       

Balance Sheet Data:

                                

Cash and cash equivalents

   $ 126,618   $ 91,578   $ 213,289   $ 73,568   $ 56,531  

Restricted cash

     17,122     22,124     9,324     14,100     525  

Total assets

     2,483,593     2,414,526     2,429,663     2,163,515     1,780,929  

Membership deposits—current portion(2)

     22,585     25,867     31,240     38,161     51,704  

Long-term debt (net of current portion)

     1,133,978     1,417,492     1,512,994     1,391,367     772,079  

Membership deposits(2)

     163,325     177,311     192,624     205,253     211,624  

Total (deficit) equity

     267,000     (40,977 )   (116,074 )   (244,357 )   231,029  
(1)
Our fiscal year consists of a 52/53 week period ending on the last Tuesday of December. For 2008, our fiscal year was comprised of the 53 weeks ended December 30, 2008. For 2006, 2007, 2009 and 2010, our fiscal years were comprised of the 52 weeks ended December 26, 2006, December 25, 2007, December 29, 2009 and December 28, 2010, respectively.

(2)
The liability for membership deposits is the difference between the amount paid by the member and the present value of the refund obligation. The present value of the refund obligation of the membership deposit liability accretes over the nonrefundable term using the effective interest method with an interest rate defined as our weighted average borrowing rate adjusted to reflect a 30-year time frame.

(3)
The statement of operations and balance sheet data reflect the ClubCorp Formation from November 30, 2010, which was treated as a reorganization of entities under common control.

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MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS

        The following discussion of our financial condition and results of operations should be read together with the consolidated financial statements and related notes that are included elsewhere in this prospectus. This discussion may contain forward-looking statements based upon current expectations that involve risks and uncertainties. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those set forth under "Risk Factors" and "Cautionary Statement Regarding Forward-Looking Statements" or in other parts of this prospectus.

ClubCorp Formation

        ClubCorp is a holding company that was formed on November 30, 2010, as part of a reorganization of ClubCorp, Inc. ("CCI") for the purpose of operating and managing golf, country, business, sports and alumni clubs.

        Prior to November 30, 2010, CCI was a holding company that through its subsidiaries owned and operated golf, country, business, sports and alumni clubs, two full-service resorts and certain other equity and realty interests. The two full service resorts and certain other equity, realty and future royalty interests are referred to as the "Non-Core Entities". On November 30, 2010, the following transactions occurred (the "ClubCorp Formation") which were structured to complete the contribution of the golf, country, business, sports and alumni clubs into ClubCorp. A summary of the transactions relevant to ClubCorp are described below:

    •
    Fillmore CCA Holdings, Inc. ("Fillmore Inc.") formed two wholly owned subsidiaries, ClubCorp and CCA Club Operations Holdings, LLC ("Parent"), and transferred its interests through a contribution of 100% of the stock of CCI to ClubCorp.

    •
    Investment vehicles controlled by KSL contributed $260.5 million as equity capital to ClubCorp.

    •
    Fillmore Inc. reincorporated in Nevada through a merger into a newly formed Nevada corporation, ClubCorp Holdings, Inc. ("Holdings"), with Holdings as the surviving entity. CCI merged into ClubCorp USA, Inc. ("CCUSA"), with CCUSA surviving as a wholly-owned subsidiary of ClubCorp.

    •
    ClubCorp issued and sold $415.0 million of unsecured notes and borrowed $310.0 million of secured term loans under our new secured credit facilities.

    •
    ClubCorp sold its Non-Core Entities to affiliates of KSL.

    •
    ClubCorp repaid a portion of the loans under its then existing secured credit facilities. The lenders under such facilities forgave the remaining $342.3 million of debt owed under such facilities and such facilities were terminated.

    •
    ClubCorp settled certain balances owed to affiliates of KSL.

Overview

        We are one of the largest owners and managers of private golf, country, business, sports and alumni clubs in North America, with a network of clubs that includes over 147,000 memberships and 350,000 individual members. Our operations are organized into two business segments: (1) golf and country clubs and (2) business, sports and alumni clubs. We operate our properties through sole ownership, partial ownership (including joint venture interests), operating leases and management agreements. As of December 28, 2010, we owned or operated 98 golf and country clubs and 55 business, sports and alumni clubs in 25 states, the District of Columbia and two foreign countries. Our business is a relationship business with a member-oriented philosophy. We believe that our

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expansive network of clubs and our focus on facilities, recreation and social programming differentiates us from our competitors and enhances our ability to attract members across a number of desirable demographic groups.

        In connection with the ClubCorp Formation, in the fiscal year ended December 28, 2010, we recorded a gain on extinguishment of debt of $334.4 million.

Discontinued Non-Core Entities

        In connection with the ClubCorp Formation, ClubCorp distributed its Non-Core Entities to affiliates of KSL. The financial results of such entities are presented as discontinued Non-Core Entities.

Factors Affecting our Business

        A significant percentage of our revenues are derived from membership dues, and these dues together with the geographic diversity of our clubs, help to provide us with a recurring revenue base that limits the impact of fluctuations in regional economic conditions. The recent economic environment has negatively impacted our business and the private club industry generally, resulting in declines in revenues due to decreased membership and overall visitation and usage. Additionally, in December 2010, we ceased operating the Nashville City Club in Nashville, Tennessee and the Renaissance Club in Detroit, Michigan (however, members of the former Renaissance Club remain members of Skyline Club also in Detroit, Michigan), and we ceased operating First City Club in Savannah, Georgia in February 2011. However, we believe our efforts to position our clubs as focal points for their local communities by offering a lifestyle that appeals to the entire family of our members has created increased member loyalty which has mitigated attrition rates in our membership base compared to the industry as a whole. We also actively manage our variable costs and focus on labor productivity to maintain profit margins and drive financial performance. We believe the strength of our clubs and the stability of our membership will enable us to maintain our position as an industry leader in the future.

        We are in the business of private club ownership and management and, as one of the largest operators of private clubs in the world; we enjoy economies of scale and a leadership position. Going forward we will look to strategically expand and upgrade our portfolio. In fiscal year 2010, we opened a new alumni club at Texas Tech University in Lubbock, Texas and acquired Country Club of the South outside Atlanta, Georgia. Additionally, our targeted capital investment program is expected to yield positive financial results as we upgrade our facilities to improve our members experience and the appearance of our private club product. In addition to renovations made at our clubs we are in the process of updating our website and member relationship management systems.

    Enrollment and Retention of Members

        Our success depends on our ability to attract and retain members at our clubs and maintain or increase usage of our facilities. Historically, we have experienced varying levels of membership enrollment and attrition rates and, in certain areas, decreased levels of usage of our facilities. Although we devote substantial efforts to ensuring that members and guests are satisfied, many of the factors affecting club membership and facility usage are beyond our control. Significant periods where attrition rates exceed enrollment rates or where facilities usage is below historical levels would have a material adverse effect on our business, operating results and financial position. We have various programs at our clubs targeted at decreasing our future attrition rate by increasing member satisfaction and usage. These programs take a proactive approach to getting current and newly enrolled members involved in activities and groups that go beyond the physical club, in addition to granting members a small number of discounts on meals and other items in order to increase their familiarity with their club's amenities.

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    Industry and Demographic Trends

        The golf industry is highly fragmented, characterized by stabilizing supply and demand, varied ownership structures and strong consumer appeal. Data from the National Golf Foundation shows that since 2006, golf industry supply has declined indicating the industry is still overcoming a supply and demand imbalance caused by a dramatic increase in the number of facilities in the 1990s. According to the National Golf Foundation, 2010 represented the fifth consecutive year in which facility closures outnumbered openings with 75 net 18-hole equivalent golf facility closures.

        We believe that the golf industry overall will benefit as baby boomers (individuals born between 1946 and 1964) enter the peak leisure phase of their lives. According to publications by the National Golf Foundation the private golf club industry captures a more affluent segment of baby boomers than the industry as a whole. Members of the baby-boomer generation are currently in transition from their professional peak earning years and will soon begin retiring at an unprecedented rate with the first wave of baby boomers reaching the age of 65 in 2011. According to the U.S. Census Bureau, there will be a projected 18% increase in the U.S. population aged 55 to 64 from 2010 through 2020. Data from the Congressional Budget Office and Federal Reserve indicate that baby-boomer households own more than 50 percent of the value of all outstanding financial assets in the U.S. financial market. As a result, the aging of the baby-boomer generation also has potentially favorable implications for the golf industry as the greatest number of rounds played occurs in the 65 and over age category of golfers, based on data collected by the National Golf Foundation.

    Seasonality of Demand; Fluctuations in Quarterly Results

        Our quarterly results fluctuate as a result of a number of factors. Usage of our country club and golf facilities declines significantly during the first and fourth quarters, when colder temperatures and shorter days reduce the demand for golf and golf-related activities. Our business clubs typically generate a greater share of their yearly revenues in the fourth quarter, which includes the holiday and year-end party season. In addition, the fourth quarter consists of 16 or 17 weeks of operations and the first, second and third fiscal quarters each consist of 12 weeks. As a result of these factors, we usually generate a disproportionate share of our revenues and cash flows in the second, third and fourth quarters of each year and have lower revenues and profits in the first quarter. The timing of purchases, sales, leases of facilities, or divestitures, has also caused and may cause our results of operations to vary significantly in otherwise comparable periods.

        Our results can also be affected by non-seasonal and severe weather patterns. Periods of extremely hot, cold or rainy weather in a given region can be expected to reduce our golf-related revenue for that region. Similarly, extended periods of low rainfall can affect the cost and availability of water needed to irrigate our golf courses and can adversely affect results for facilities in the region impacted. Keeping turf grass conditions at a satisfactory level to attract play on our golf courses requires significant amounts of water. Our ability to irrigate a course could be adversely impacted by a drought or other water shortage. A severe drought affecting a large number of properties could materially adversely affect our business and results of operations.

    Implications of the ClubCorp Formation

        Our future operating results and financial condition will be impacted by the ClubCorp Formation. As a result of the ClubCorp Formation and as discussed in "Unaudited Pro Forma Consolidated Financial Data", we will incur increased interest expense as a result of higher above aggregate interest rates on our outstanding indebtedness. In addition, our taxpayer status has changed due to taxable gains triggered by the ClubCorp Formation that utilized our net operating loss carryforwards.

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Basis of Presentation

        Total revenues recorded in our two principle business segments (1) golf and country clubs and (2) business, sports and alumni clubs are comprised mainly of revenues from membership dues, food and beverage operations, golf operations and membership upgrade products. Operating costs and expenses recorded in our two principle business segments primarily consist of labor expenses, food and beverage costs, golf course maintenance costs and general and administrative costs.

        Other operations not allocated to our two principle business segments are comprised of primarily income from arrangements with third parties for access privileges, expenses associated with corporate overhead, shared services and intercompany eliminations made in the consolidation between these other operations and our two principle business segments.

        We offer a network of products, services and amenities through membership upgrades that provide access to our extensive network of clubs and leverage our alliances with other clubs, facilities and properties. For example, our reciprocal access program allows our members, for incremental monthly dues, to have access to our network of clubs in certain geographical areas, which is arranged by our in-house travel concierge. The membership upgrade revenues associated with our network of clubs are recorded in the two principle business segments (1) golf and country clubs and (2) business, sports and alumni clubs. The membership upgrade revenues associated with access privileges to third party clubs, facilities and properties are recorded in other operations.

        We evaluate segment performance and allocate resources based on each Segment Adjusted EBITDA. We consider Segment Adjusted EBITDA an important indicator of our operational strength and performance of our business. We have included Segment Adjusted EBITDA because it is a key financial measure used by our management to (i) assess our ability to service our debt or incur debt and meet our capital expenditure requirements and (ii) internally measure our operating performance. Segment Adjusted EBITDA is defined as net income before discontinued operations, interest and investment income, interest expense and the change in fair value of interest rate cap agreements, income taxes, loss on disposal and impairment of assets, depreciation and amortization, translation gain and loss, proceeds from business interruption insurance, severance payments, the negative EBITDA impact related to estimated settlement for unclaimed property accrued during fiscal year 2009, fees and expenses paid to an affiliate of KSL, acquisition costs and amortization of fair value adjustments in investments in joint ventures. Segment Adjusted EBITDA for all periods presented has been calculated using this definition. Segment Adjusted EBITDA should not be construed as an alternative to, or a better indicator of, operating income or loss, is not based on accounting principles generally accepted in the United States of America, and is not necessarily a measure of our cash flows or ability to fund our cash needs. Our measurements of Segment Adjusted EBITDA may not be comparable to similar titled measures reported by other companies.

        Our fiscal year consists of a 52/53 week period ending on the last Tuesday of December. For 2008, the fiscal year comprised the 53 weeks ended December 30, 2008. For 2009 and 2010, the fiscal years were comprised of the 52 weeks ended December 29, 2009 and December 28, 2010, respectively.

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        The following table presents our financial operating results as a percent of our total revenues for the periods indicated.

 
   Years Ended  
Consolidated
Statement of Operations
  December 30,
2008 		  % of
Revenue 		  December 29,
2009 		  % of
Revenue 		  December 28,
2010 		  % of
Revenue 		 
 
   (dollars in thousands)
  

Club operations

   $ 560,862     71.59 % $ 515,388     72.63 % $ 501,733     72.02 %

Food and beverage

     218,960     27.95 %   191,778     27.02 %   192,022     27.56 %

Other revenues

     3,637     0.46 %   2,467     0.35 %   2,882     0.41 %
                                 
 

Total revenues

     783,459           709,633           696,637        

Direct and selling, general, and administrative expenses:

                                      

Club operating costs exclusive of depreciation

     530,152     67.67 %   461,260     65.00 %   458,241     65.78 %

Cost of food and beverage sales exclusive of depreciation

     63,195     8.07 %   61,209     8.63 %   60,596     8.70 %

Depreciation and amortization

     101,724     12.98 %   98,619     13.90 %   92,673     13.30 %

Provision for doubtful accounts

     4,550     0.58 %   4,815     0.68 %   3,248     0.47 %

Loss (gain) on disposals/acquisitions of assets

     3,880     0.50 %   6,473     0.91 %   (5,351 )   -0.77 %

Impairment of assets

     2,642     0.34 %   11,808     1.66 %   9,243     1.33 %

Selling, general and administrative

     45,136     5.76 %   39,266     5.53 %   38,946     5.59 %
                                 

Operating income from continuing operations

     32,180     4.11 %   26,183     3.69 %   39,041     5.60 %

Interest and investment income

     4,290     0.55 %   2,684     0.38 %   714     0.10 %

Equity in earnings from unconsolidated ventures

     1,514     0.19 %   706     0.10 %   1,309     0.19 %

Interest expense

     (94,583 )   -12.07 %   (58,383 )   -8.23 %   (57,165 )   -8.21 %

Change in fair value of interest rate cap agreements

     (10,454 )   -1.33 %   2,624     0.37 %   (3,529 )   -0.51 %

Gain on extinguishment of debt

     —     0.00 %   —     0.00 %   334,412     48.00 %

Other income

     7,387     0.94 %   6,006     0.85 %   3,929     0.56 %
                                 

(Loss) income before income taxes

     (59,666 )   -7.62 %   (20,180 )   -2.84 %   318,711     45.75 %

Income tax benefit (expense)

     17,803     2.27 %   958     0.13 %   (57,109 )   -8.20 %
                                 

(Loss) income from continuing operations

     (41,863 )   -5.34 %   (19,222 )   -2.71 %   261,602     37.55 %

(Loss) income from discontinued clubs, net of income tax benefit of $11,706 and $284, in 2008 and 2009, respectively and income tax expense of $3 in 2010

     (23,584 )   -3.01 %   (795 )   -0.11 %   54     0.01 %

Income (loss) from discontinued Non-Core Entities, net of income tax benefit of $957 and $6,844 in 2008 and 2009 respectively and income tax expense of $6,748 in 2010

     (4,134 )   -0.53 %   (11,487 )   -1.62 %   (8,779 )   -1.26 %
                                 

Net (loss) income

     (69,581 )   -8.88 %   (31,504 )   -4.44 %   252,877     36.30 %

Loss attributable to noncontrolling interests

     (348 )   -0.04 %   2,766     0.39 %   1,620     0.23 %
                                 

(Loss) income attributable to ClubCorp

   $ (69,929 )   -8.93 % $ (28,738 )   -4.05 % $ 254,497     36.53 %
                                 

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Critical Accounting Policies and Estimates

        The process of preparing financial statements in conformity with GAAP requires us to use estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes included elsewhere in this prospectus. We base these estimates and assumptions upon the best information available to us at the time the estimates or assumptions are made. Accordingly, our actual results could differ materially from our estimates. The most significant estimates made by management includes the average expected life of an active membership used to amortize initiation fees and deposits, our weighted average borrowing rate used to accrete membership initiation deposit liability, and inputs for impairment testing of goodwill, intangibles and long-lived assets. The following is a discussion of our critical accounting policies and the related management estimates and assumptions used in determining the value of related assets and liabilities. A full description of all of our significant accounting policies is included in Note 2 to our audited consolidated financial statements included elsewhere in this prospectus.

    Revenue Recognition

        Revenues from club operations, food and beverage and merchandise sales are recognized when the service is provided and are reported net of sales taxes. Revenues from membership dues are billed monthly and recognized in the period earned. Service charges in excess of amounts paid to employees are recognized in revenue. The monthly dues are expected to cover the cost of providing membership services and are generally adjusted annually depending on national or regional economic conditions, which could limit our ability to increase revenues from membership dues. Prepaid dues are recognized as income over the prepayment period. Revenue from initiation fees and deposits are recognized as described below.

    Average Expected Life of an Active Membership

        At the majority of our private clubs, members are expected to pay an initiation fee or deposit upon their acceptance as a member to the club. These initiation fees and deposits vary in amount based on a variety of factors such as the supply and demand for our services in each particular market, number of golf courses or breadth of amenities available to the members and the prestige of the club. In general, initiation fees are not refundable, but initiation deposits are refundable after a number of years. The majority of our initiation fees are deferred and recognized over the average expected life of an active membership which is seven years for golf and country club memberships and five years for business, sports and alumni club memberships for the periods presented. The majority of our initiation deposits are refundable after a fixed number of years (generally 30 years), following the date of acceptance of a member. We recognize revenue related to these initiation deposits over the average expected life of an active membership. For initiation deposits, the difference between the amount paid by the member and the present value of the refund obligation is deferred and recognized as initiation fees and deposits revenue on a straight-line basis over the average expected life of an active membership. The present value of the refund obligation is recorded as an initiation deposit liability in our consolidated balance sheet and accretes over the nonrefundable term using the effective interest method with an interest rate defined as our weighted average borrowing rate adjusted to reflect a 30-year time frame. The accretion is included in interest expense.

        The calculation of the average expected life of an active membership is a critical estimate in the recognition of revenues and expenses associated with initiation fees and deposits and is used for the amortization associated with our membership relationship intangibles. Average expected life of an active membership is calculated separately for business, sports and alumni clubs and golf and country clubs by taking the inverse of the total number of members lost in a particular period divided by the total number of members at the end of the prior period. This base-level calculation is performed at the end of each fiscal year, using a 10-year rolling average of each year's data to determine the average

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expected life of an active membership to be used in the upcoming year. Periods in which attrition rates differ significantly from enrollment rates could have a material effect on our consolidated financial statements by decreasing or increasing the average expected life of an active membership, which in turn would affect the length of time over which we recognize revenues and expenses associated with our initiation fees and deposits. Because initiation fees and deposits generally have minimal direct incremental costs associated with them, a change in our average expected life of an active membership would likely materially affect our results of operations. Based on our analysis for 2011, the average expected life of an active membership will decrease from seven to six years for golf and country club memberships and five to four years for business, sports and alumni club memberships, which is expected to decrease revenue by approximately $0.3 million for the fiscal year ended December 27, 2011.

    Impairment of Long-Lived Assets

        In accordance with FASB ASC Topic 360, accounting standards related to "Accounting for the Impairment or Disposal of Long-Lived Assets," our long-lived assets to be held and used and to be disposed of are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Impairment charges are recorded as a component of operating income or loss in our consolidated statements of operations.

        For assets held for sale, fair value is determined using information on known purchase price commitments from potential buyers, less estimated incremental direct costs to sell the property in question. Changes in purchase prices due to market conditions, a potential buyer's due diligence process or other factors beyond our control such as the emergence of unanticipated selling costs can materially affect estimates of fair value and the amount of impairment charges recorded in a particular period.

        For assets to be held and used, we perform a recoverability test to determine if the future undiscounted cash flows over our expected holding period for the property exceed the carrying amount of the assets of the property in question. If the recoverability test is not met, fair value is determined by comparing the carrying value of the property to its future discounted cash flows using a risk-adjusted discount rate. Future cash flows of each property are determined using management's projections of the performance of a given property based on its past performance and expected future performance given changes in marketplace, local operations and other factors both within our control and out of our control. Additionally, we review current property appraisals when available to assess recoverability. Actual results that differ from these estimates can generate material differences in impairment charges recorded, and ultimately, net income or loss in our consolidated statements of operations and the carrying value of properties on our consolidated balance sheet.

        For the years ended December 28, 2010, December 29, 2009 and December 30, 2008, impairment charges of long-lived assets of $0.6 million, $2.3 million and $0.2 million, respectively, were recognized as a component of operating income in our consolidated statements of operations.

    Impairment of Goodwill and Intangible Assets

        We classify intangible assets into three categories: (1) intangible assets with definite lives subject to amortization, (2) intangible assets with indefinite lives not subject to amortization and (3) goodwill. Intangibles specifically related to an individual property are recorded at the property level. Intangible assets with finite lives are amortized on a straight-line basis over their estimated useful lives and are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Indefinite lived intangibles are also evaluated upon the occurrence of such costs, but not less than annually. FASB ASC Topic 820 establishes a three-tiered fair value hierarchy that prioritizes inputs to valuation techniques used in fair value calculations. We test

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our trade name intangible assets, which are indefinite lived, utilizing the relief from royalty method to determine the estimated fair value for each trade name which is classified as a Level 3 measurement under FASB ASC Topic 820. The relief from royalty method estimates our theoretical royalty savings from ownership of the intangible asset. Key assumptions used in this model include discount rates, royalty rates, growth rates, sales projections and terminal value rates. We recorded impairment of trade names of $8.6 million, $9.4 million and $2.4 million in the years ended December 28, 2010, December 29, 2009 and December 30, 2008, respectively, included in impairment of assets in our consolidated statements of operations.

        We evaluate goodwill for impairment at the reporting unit level (golf and country clubs and business, sports and alumni clubs). Goodwill is allocated to each reporting unit based on an estimate of its relative fair value. When testing for impairment, we first compare the fair value of our reporting units to the recorded values. Reporting units are defined as an operating segment or one level below. Valuation methods used to determine fair value include analysis of the discounted future free cash flows that a reporting unit is expected to generate ("Income Approach") and an analysis is based upon a comparison of reporting units to similar companies utilizing a purchase multiple of earnings before interest, taxes, depreciation and amortization ("Market Approach"). These valuations are considered Level 3 measurements under FASB ASC Topic 820. Management utilizes estimates to determine the fair value of the reporting units. Significant estimates used by management include future cash flows projections, growth rates, capital needs, projected margins and the discount rate, among other factors.

        If the carrying amount of the reporting units exceeds its fair value, goodwill is considered potentially impaired and a second step is performed to measure the amount of impairment loss. In the second step of the goodwill impairment test, we compare the implied value of the reporting unit's goodwill with carrying value of that unit's goodwill. If the carrying value of the reporting unit's goodwill exceeds the implied value, an impairment loss is recognized in an amount equal to that excess. The implied fair value of goodwill is determined in the same manner as the amount of goodwill recognized in a business combination under FASB ASC Topic 810. Accordingly, the fair value of a reporting unit is allocated to all the assets and liabilities of that unit, including intangible assets, and any excess of the value of the reporting unit over the amounts assigned to its assets and liabilities is the implied value of its goodwill.

        We test goodwill for impairment annually on the first day of our last fiscal quarter. Based on this analysis, no impairment of goodwill was recorded at December 30, 2008, December 29, 2009, or December 28, 2010, respectively. We are not currently aware of any material events that would cause us to reassess the fair value of our goodwill and trade name intangible assets. Estimates utilized in the future evaluations of goodwill for impairment could differ from estimates used in the current period calculations. Unfavorable future estimates could result in an impairment of goodwill. The most significant assumptions used in the Income Approach to determine the fair value of our reporting units in connection with impairment testing include: (i) the discount rate, (ii) the expected long-term growth rate and (iii) future cash flows projections. If we used a discount rate that was 50 basis points higher or used an expected long-term growth rate that was 50 basis points lower or used future cash flows projections that were 50 basis points lower in our impairment analysis of goodwill performed in 2010, then each change individually would not have resulted in any reporting unit's carrying value exceeding its fair value.

        As of December 28, 2010, we had allocated $119.8 million of goodwill to our golf and country club segment and $152.2 million of goodwill to our business, sports and alumni club segment.

    Income Taxes

        The objectives of accounting for income taxes are to recognize the amount of taxes payable or refundable for the current year and deferred tax liabilities and assets for the future tax consequences of

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events that have been recognized in our financial statements or tax returns. Judgment is required in addressing the future tax consequences of events that have been recognized in our financial statements or tax returns (e.g., realization of deferred tax assets, changes in tax laws or interpretations thereof). In addition, we may be subject to examination of our income tax returns by the Internal Revenue Service and other tax authorities. A change in the assessment of the outcomes of such matters could materially impact our consolidated financial statements. We may be liable for proposed tax liabilities and the final amount of taxes paid may exceed the amount of applicable reserves, which could reduce our profits.

        We account for uncertain tax positions in accordance with FASB ASC 740. The guidance prescribes a financial statement recognition threshold and measurement attribute for tax positions taken or expected to be taken in a tax return. Specifically, it clarifies that an entity's tax benefits must be "more likely than not" of being sustained assuming that its tax reporting positions will be examined by taxing authorities with full knowledge of all relevant information prior to recording the related tax benefit in the financial statements. If the position drops below the "more likely than not" standard, the benefit can no longer be recognized. Assumptions, judgment and the use of estimates are required in determining if the "more likely than not" standard has been met when developing the provision for income taxes. A change in the assessment of the "more likely than not" standard could materially impact our financial statements. As of December 28, 2010 and December 29, 2009, we had unrecognized tax benefits of $53.2 million and $8.5 million, respectively. We recognize accrued interest and penalties related to uncertain tax positions as a component of income tax expense. Income tax expense for 2010 includes interest expense and penalties net of tax of $0.5 million. Prior to December 28, 2010, no interest or penalties were recorded related to unrecognized tax benefits.

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Results of Operations

Comparison of the Years Ended December 29, 2009 and December 28, 2010

        The following table presents key financial information derived from our consolidated statement of operations for the fiscal year ended December 29, 2009 and December 28, 2010. References in the financial tables to percentage changes that are not meaningful are denoted by "NM":

 
   Fiscal Years Ended    
    
  
 
   Dec. 29,
2009 		  Dec. 28,
2010 		  Change   %
Change 		 
 
   (dollars in thousands)
  

Total revenues

   $ 709,633   $ 696,637   $ (12,996 )   -1.8 %

Club operating costs and expenses exclusive of depreciation(1)

     527,284     522,085     (5,199 )   -1.0 %

Depreciation and amortization

     98,619     92,673     (5,946 )   -6.0 %

Loss (gain) on disposals and acquisitions of assets

     6,473     (5,351 )   (11,824 )   182.7 %

Impairment of assets

     11,808     9,243     (2,565 )   -21.7 %

Selling, general and administrative expenses

     39,266     38,946     (320 )   -0.8 %
                   

Operating income from continuing operations

     26,183     39,041     12,858     49.1 %

Interest and investment income

     2,684     714     (1,970 )   -73.4 %

Equity in earnings from unconsolidated ventures

     706     1,309     603     85.4 %

Interest expense

     (58,383 )   (57,165 )   1,218     -2.1 %

Change in fair value of interest rate cap agreements

     2,624     (3,529 )   (6,153 )   -234.5 %

Gain on extinguishment of debt

     —     334,412     334,412     NM  

Other income

     6,006     3,929     (2,077 )   -34.6 %
                   

(Loss) income before income taxes

     (20,180 )   318,711     338,891     NM  

Income tax benefit (expense)

     958     (57,109 )   (58,067 )   NM  
                   

(Loss) income from continuing operations

   $ (19,222 ) $ 261,602   $ 280,824     NM  
                   
(1)
Comprised of club operating costs, cost of food and beverage sales and provision for doubtful accounts.

        Total revenues of $696.6 million decreased $13.0 million, or 1.8%, for the fiscal year ended December 28, 2010 compared to the fiscal year ended December 29, 2009 as economic challenges impacted all operating divisions and areas of revenue. Golf and country club revenues decreased $2.5 million, or 0.5%, primarily due to decreases in dues revenue and golf operations revenue. The decline was largely driven by a lower membership base and unusually wet weather in the first quarter of 2010. Business, sports and alumni club revenues decreased $8.5 million, or 4.6%, primarily due to decreases in dues revenue and food and beverage ala carte revenues as a result of a lower membership base.

        Club operating costs and expenses decreased $5.2 million, or 1.0%, for the fiscal year ended December 28, 2010 compared to the fiscal year ended December 29, 2009 primarily as a result of management of variable labor costs and cost of goods sold associated with the decline in revenues.

        Gain on disposal of assets for the fiscal year ended December 28, 2010 was comprised primarily of insurance proceeds of $2.5 million, eminent domain proceeds from a county of $1.5 million, bargain purchase gain on the purchase of a country club of $1.2 million, gain on the sale of property in Mexico of $3.0 million, and a $2.8 million loss from other transactions in the normal course of business. Loss on disposal of assets for the fiscal year ended December 29, 2009 was comprised primarily of asset retirements and other transactions in the normal course of business of $10.0 million and net loss on the sale of one country club of $1.7 million, offset by insurance and other proceeds of $5.2 million.

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Segment Operations

    Golf and Country Clubs

        The following table presents key financial information for our golf and country clubs for the fiscal year ended December 29, 2009 and December 28, 2010:

 
   Fiscal Years Ended    
    
  
 
   Dec. 29,
2009 		  Dec. 28,
2010 		  Change   %
Change 		 
 
   (dollars in thousands)
  

Number of facilities at end of period

     97     98              

Total revenues

   $ 526,218   $ 523,750   $ (2,468 )   -0.47 %

Segment Adjusted EBITDA from continuing operations

     146,902     142,967     (3,935 )   -2.68 %

        Total revenues for golf and country clubs decreased $2.5 million, or 0.5%, for the fiscal year ended December 28, 2010 compared to the fiscal year ended December 29, 2009 primarily due to decreases in membership dues and golf operations revenue. Membership dues decreased 1.6% due to a 0.5% decline in overall membership count combined with lower average monthly dues per membership. The decline in average dues per membership was a result of a migration of a portion of our membership from higher dues paying full golf member categories to young executive golf, social and athletic member categories that require lower monthly dues commitment. Golf operations revenue decreased 2.3% due to lower green fees and cart fees resulting from a 6.1% decline in golf rounds. This decline was primarily due to unusually cold and wet weather during the first quarter of 2010 that resulted in a decline in golf rounds.

        Segment Adjusted EBITDA decreased $3.9 million, or 2.7%, for the fiscal year ended December 28, 2010 compared to the fiscal year ended December 29, 2009 as a result of decreased revenues, partially offset by a related decrease in operating costs and expenses. Segment Adjusted EBITDA margin declined 60 basis points for the fiscal year ended December 28, 2010 to 27.3% compared to 27.9% for the fiscal year ended December 29, 2009 due to loss of higher margin dues and golf operations revenue.

    Business, Sports and Alumni Clubs

        The following table presents key financial information for our business, sports and alumni clubs for the fiscal year ended December 29, 2009 and December 28, 2010:

 
   Fiscal Years Ended    
    
  
 
   Dec. 29,
2009 		  Dec. 28,
2010 		  Change   %
Change 		 
 
   (dollars in thousands)
  

Number of facilities at end of period

     55     55              

Total revenues

   $ 184,320   $ 175,833   $ (8,487 )   -4.60 %

Segment Adjusted EBITDA from continuing operations

     35,560     30,197     (5,363 )   -15.08 %

        Total revenues for business, sports and alumni clubs decreased $8.5 million, or 4.6%, for the fiscal year ended December 28, 2010 compared to the fiscal year ended December 29, 2009 primarily due to decreases in membership dues and food and beverage revenues. Membership dues decreased 8.0% due to a 4.9% decline in overall membership count combined with lower average monthly dues per member. Member referral programs that provided dues discounts to referring members helped stimulate membership sales that were negatively impacted by the economic conditions but contributed to the decline in average dues per member. Food and beverage revenues decreased 1.3% primarily as a result of lower ala carte dining. Ala carte revenue decreased 10.1% due to a decline in volume as a result of lower member counts and 3.9% decrease in amounts spent per member.

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        Segment Adjusted EBITDA decreased $5.4 million, or 15.1%, for the fiscal year ended December 28, 2010 compared to the fiscal year ended December 29, 2009 as a result of decreased revenues, partially offset by a related decrease in operating costs and expenses. Variable labor costs and cost of goods sold decreased with associated decreases in food and beverage revenue. Segment Adjusted EBITDA margin declined 210 basis points for the fiscal year ended December 28, 2010 to 17.2% compared to 19.3% for the fiscal year ended December 29, 2009 due to loss of higher margin dues revenue.

Comparison of the Years Ended December 30, 2008 and December 29, 2009

        The following table presents key financial information derived from our consolidated statement of operations for the fiscal years ended December 30, 2008 and December 29, 2009:

 
   Fiscal Years Ended    
    
  
 
   Dec. 30,
2008 		  Dec. 29,
2009 		  Change   %
Change 		 
 
   (dollars in thousands)
  

Total revenues

   $ 783,459   $ 709,633   $ (73,826 )   -9.4 %

Club operating costs and expenses exclusive of depreciation(1)

     597,897     527,284     (70,613 )   -11.8 %

Depreciation and amortization

     101,724     98,619     (3,105 )   -3.1 %

Loss on disposals of assets

     3,880     6,473     2,593     66.8 %

Impairment of assets

     2,642     11,808     9,166     346.9 %

Selling, general and administrative expenses

     45,136     39,266     (5,870 )   -13.0 %
                   

Operating income from continuing operations

     32,180     26,183     (5,997 )   -18.6 %

Interest and investment income

     4,290     2,684     (1,606 )   -37.4 %

Equity in earnings from unconsolidated ventures

     1,514     706     (808 )   -53.4 %

Interest expense

     (94,583 )   (58,383 )   36,200     -38.3 %

Change in fair value of interest rate cap agreements

     (10,454 )   2,624     13,078     -125.1 %

Other income

     7,387     6,006     (1,381 )   -18.7 %
                   

Loss before income taxes

     (59,666 )   (20,180 )   39,486     -66.2 %

Income tax benefit

     17,803     958     (16,845 )   -94.6 %
                   

Loss from continuing operations

   $ (41,863 ) $ (19,222 ) $ 22,641     -54.1 %
                   
(1)
Comprised of club operating costs, cost of food and beverage sales and provision for doubtful accounts.

        Total revenues of $709.6 million decreased $73.8 million, or 9.4%, for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The impact of the fiscal year ended December 30, 2008 having 53 weeks compared to 52 weeks in the fiscal year ended December 29, 2009 ("2008 53rd week impact") attributed approximately $11.5 million, or 1.5%, of the decrease. The remaining decrease of $62.3 million, or 7.9%, was due to economic challenges that impacted all operating divisions and areas of revenue. Golf and country club revenues decreased $39.2 million, or 6.9%. The 2008 53rd week impact attributed approximately $7.9 million, or 1.4%, of the decrease while $31.3 million, or 5.5%, of the decrease was primarily due to decreases in golf operations revenue, food and beverage revenues and dues revenue as a result of lower member counts and declines in golf rounds and food and beverage volume. Business, sports and alumni club revenues decreased $31.4 million, or 14.6%. The 2008 53rd week impact attributed approximately $2.2 million, or 1.0%, of the decrease while $29.2 million, or 13.6%, of the decrease was primarily due to decreases in food and beverage revenues and dues revenue as a result of lower member counts and a general decline in large corporate events which typically drive higher private party revenue.

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        Club operating costs and expenses decreased $70.6 million, or 11.8%, for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The 2008 53rd week impact attributed approximately $10.0 million or 1.7%, of the decrease while the remaining $60.6 million, or 10.1%, of the decrease was primarily as a result of management of variable labor costs and cost of goods sold associated with the decline in revenues. In addition, we implemented rigid cost controls to effectively control margins in response to decreases in revenue. Effective management of variable costs and certain controllable fixed costs resulted in significant improvements in Segment Adjusted EBITDA margins.

        Loss on disposal of assets for the fiscal year ended December 29, 2009 was comprised primarily of asset retirements and other transactions in the normal course of business of $10.0 million and net loss on the sale of one country club of $1.7 million, offset by insurance proceeds and cash of $5.2 million. Loss on disposal of assets for the fiscal year ended December 30, 2008 was comprised of asset retirements in the normal course of business of $7.5 million, $3.5 million loss from hurricane damages, offset by insurance proceeds of $7.1 million.

        Selling, general and administrative expenses decreased $5.9 million, or 13.0%, for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The 2008 53rd week impact attributed approximately $0.9 million, or 1.9%, of the decrease while the remaining $5.0 million, or 11.1%, was due to cost cutting initiatives undertaken during 2009 in response to decreased revenues.

        Interest expense decreased $36.2 million, or 38.3%, for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The 2008 53rd week impact attributed approximately $1.0 million, or 1.1%, of the decrease while the remaining $35.2 million, or 37.2%, of the decrease was due to lower interest rates during 2009. The majority of our debt had variable interest rates based on a weighted average spread above 30-day LIBOR rates which fluctuated based on economic conditions. The average 30-day LIBOR rate for the fiscal year ended December 29, 2009 declined 87.6% compared to the fiscal year ended December 30, 2008 as a result of the depressed economy.

    Segment Operations

    Golf and Country Clubs

        The following table presents key financial information for our golf and country clubs for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008:

 
   Fiscal Years Ended    
    
  
 
   Dec. 30,
2008 		  Dec. 29,
2009 		  Change   % Change  
 
   (dollars in thousands)
  

Number of facilities at end of period

     100     97              

Total revenues

   $ 565,395   $ 526,218   $ (39,177 )   -6.93 %

Segment Adjusted EBITDA from continuing operations

     143,684     146,902     3,218     2.24 %

        Total revenues for golf and country clubs decreased $39.2 million, or 6.9% for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The 2008 53rd week impact attributed approximately $7.9 million, or 1.4%, of the decrease while $31.3 million, or 5.5%, of the decrease was primarily due to decreases in golf operations revenue, food and beverage revenues and membership dues revenue. Golf revenue decreased $17.0 million, or 12.2%, as golf rounds played decreased 3.7% due to lower membership and exceptionally wet weather in the fourth quarter of 2009. Food and beverage revenue decreased $9.1 million, or 7.5%, due to declines in both ala carte and private party revenue. Ala carte revenue decreased 7.4% as a result of declines in both volume, due to lower member count, and average amounts spent per member. Food and beverage discount programs

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were implemented in the first half of 2009 to drive ala carte volume but negatively impacted average amounts spent per member. Food and beverage programming was successful in driving a 1.3% increase in ala carte meals per member, but did not outpace the overall decline in volume due to decreased membership and lower golf rounds. Private party revenue decreased 9.4% due to declines in volume, particularly in higher revenue generating corporate events, as economic uncertainty was negatively impacting corporate business spend. Dues revenue decreased $5.0 million, or 1.9%, due to a decline in member counts, partially offset by price increases taken in the first half of 2009.

        Segment Adjusted EBITDA increased $3.2 million, or 2.2%, for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The 2008 53rd week impact attributed a decrease of approximately $2.7 million, or 1.9%, offset by an increase of $5.9 million, or 4.1% despite decreased revenues. Variable labor costs and cost of goods sold decreased with associated decreases in revenue. Cost controls and expense management was a focus during 2009 driving targeted reductions in golf course maintenance and general and administrative expenses. In addition, strategic pricing contracts in our larger deregulated markets resulting in significant utilities savings. Comprehensive management of expenses resulted in Segment Adjusted EBITDA margin improvement of 250 basis points for the fiscal year ended December 29, 2009 to 27.9% compared to 25.4% for the fiscal year ended December 30, 2008.

    Business, Sports and Alumni Clubs

        The following table presents key financial information for our business, sports and alumni clubs for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008:

 
   Fiscal Years Ended    
    
  
 
   Dec. 30,
2008 		  Dec. 29,
2009 		  Change   % Change  
 
   (dollars in thousands)
  

Number of facilities at end of period

     58     55              

Total revenues

   $ 215,722   $ 184,320   $ (31,402 )   -14.56 %

Segment Adjusted EBITDA from continuing operations

     44,969     35,560     (9,409 )   -20.92 %

        Total revenues for business, sports and alumni clubs decreased $31.4 million, or 14.6%, for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The 2008 53rd week impact attributed approximately $2.2 million, or 1.0%, of the decrease while $29.2 million, or 13.6%, of the decrease was primarily due to decreases in food and beverage revenues and membership dues revenue. Food and beverage revenue decreased $16.7 million, or 16.8%, due to declines in both ala carte and private party revenue. Ala carte revenue decreased 14.8% due to lower member count and as a result of declines in both volume and average amounts spent per member. Food and beverage discount programs were implemented in the first half of 2009 to drive ala carte volume but negatively impacted amount spent per member. Food and beverage programming was successful in driving a 4.8% increase in ala carte meals per member but did not outpace the overall decline in volume due to decreased membership. Private party revenue decreased 20.1% due to declines in volume, particularly in higher revenue generating corporate events, as economic uncertainty was negatively impacting corporate business spend. Membership dues decreased $11.5 million, or 11.4%, due to an 8.7% decline in overall membership count combined with lower average monthly dues per member. Member referral programs that provided dues discounts to referring members helped stimulate membership sales that were negatively impacted by the economic conditions but contributed to the decline in average dues per member.

        Segment Adjusted EBITDA decreased $9.4 million, or 20.9%, for the fiscal year ended December 29, 2009 compared to the fiscal year ended December 30, 2008. The 2008 53rd week impact attributed approximately $0.8 million, or 1.9%, of the decrease while the remaining $8.6 million, or

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19.0% of the decrease is resulting from decreased revenues, partially offset by a related decrease in operating costs and expenses. Variable labor costs and cost of goods sold decreased with associated decreases in revenue. Although cost controls and expense management was a focus for 2009 and effectively mitigated a significant portion of the revenue decline, overall Segment Adjusted EBITDA margin decreased 150 basis points for the fiscal year ended December 29, 2009 to 19.3% compared to 20.8% for the fiscal year ended December 30, 2008 due to the decrease in high margin dues revenue.

Liquidity and Capital Resources

        Our primary goal as it relates to liquidity and capital resources is to attain and retain the right level of debt and cash to maintain our properties, fund expansions at our properties, make distributions to our equityholders and be poised for external growth in the marketplace. During the last few years, our focus has been on strengthening our cash position and reducing our debt in order to support these goals. Our cash position excluding discontinued Non-Core Entities has decreased to $56.5 million as of December 28, 2010 compared to $73.6 million as of December 29, 2009. The primary reason for the decrease was cash flows from financing activities due to the net repayment of debt as a part of the ClubCorp Formation offset by cash flows from operations.

        Historically, we have financed our operations and cash needs primarily through cash flows from operations and debt. We anticipate using cash flows from operations in 2011 principally to fund planned capital replacement expenditures, repay debt and build cash reserves. We expect to use our cash reserves over the next twelve months to grow and expand our business through a combination of improvements and expansions of existing facilities, as well as club acquisitions, on which we spent a combined amount of approximately $50.3 million in 2010. Based on our current projections, we believe our current assets and cash flows from operations are sufficient to meet our anticipated working capital and operating needs for the next 12 months as well as to support our anticipated capital expenditures and debt service.

    Cash Flows from Operating Activities

        Our cash flows from operations were $81.6 million, $124.2 million and $148.4 million for the years ended December 30, 2008, December 29, 2009 and December 28, 2010, respectively. In addition to our daily operating transactions, a key component of our annual operating cash comes from our membership programs. Initiation deposits and fees represent advance initiation payments when a member joins one of our clubs. Initiation deposits are generally not refundable until a fixed number of years (generally 30 years) after the date of acceptance as a member while initiation fees are typically not refundable. Cash from initiation deposits is used to fund our normal operations. Revenue recognition of these initiation deposits is deferred and amortized as discussed above in "—Critical Accounting Policies and Estimates." We allow new members to defer and finance a portion of the initiation payments as an incentive for them to join at certain clubs.

    Cash Flows from (used in) Investing Activities

        During the years ended December 30, 2008, December 29, 2009 and December 28, 2010, we used $89.8 million, $32.4 million and $41.8 million, respectively, for improving and expanding our existing properties. In addition, in the fiscal year ended December 28, 2010, we used $7.4 million on the acquisition of Country Club of the South and $1.1 million on the development of Texas Tech University Club which was opened in 2010. During the fiscal year ended December 28, 2010, we collected $14.0 million on a note receivable from an affiliate of KSL and had $13.6 million in cash released from previously restricted funds. We had $8.2 million of restricted funds that were funds escrowed for payment of property taxes and insurance which are no longer required to be escrowed by our debt agreements. Additionally, we had $4.4 million of restricted funds released in connection with a litigation settlement in 2010. For 2011, we are considering additional investments to improve and expand our existing properties and acquire new properties.

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    Cash Flows from (used in) Financing Activities

        Cash used in financing activities relates primarily to transactions related to our debt, distributions to our owners and the distribution of Non-Core Entities to affiliates of KSL. We increased our debt by nearly $71.4 million in the fiscal year ended December 30, 2008. We decreased our debt by $125.8 million in the fiscal year ended December 29, 2009. During the fiscal year ended December 28, 2010, we repaid our existing debt facility with Citigroup, entered into a new debt agreement with Citigroup, including a $310 million term loan, and issued $415 million in senior unsecured notes. These transactions resulted in a net cash payment of $298.8 million. Additionally, we received a contribution from our owners of $260.5 million and distributed a net $37.0 million to affiliates of KSL as a part of the ClubCorp Formation. We made a distribution to our owners of $90.4 million in the fiscal year ended December 29, 2009.

        Our cash and cash equivalents excluding discontinued Non-Core Entities increased by $121.7 million, decreased by $139.7 million, and decreased by $17.0 million in the years ended December 30, 2008, December 29, 2009 and December 28, 2010, respectively.

    Capital Spending

        The nature of our business requires us to invest a significant amount of capital in our existing properties to maintain them. For the years ended December 30, 2008, December 29, 2009 and December 28, 2010, we expended approximately $43.8 million, $25.1 million and $34.9 million, respectively, in maintenance. We anticipate spending approximately $35.0 million in capital expenditures relating to capitalized maintenance in the fiscal year 2011.

        In addition to maintaining our properties, we also spend discretionary capital to expand and improve existing properties and to enter into new business opportunities. Capital expansion funding totaled approximately $46.0 million, $7.3 million and $15.4 million for the years ended December 30, 2008, December 29, 2009 and December 28, 2010, respectively. We anticipate spending an additional $20.0 million in the fiscal year 2011 for expansion and improvement projects we feel have a high potential for return on investment. This amount could increase if acquisition opportunities are identified that fit our strategy to expand our business through select acquisitions.

    Debt

Senior Secured Debt

        2006 Citigroup Debt Facility—In 2006, an affiliate of ClubCorp, Inc. entered into a debt agreement with Citigroup which resulted in a Mortgage loan, a Senior Mezzanine loan, a Junior Mezzanine loan, and a revolving loan facility (collectively, the "2006 Citigroup Debt Facility"), which was initially to mature in January 2010. The loans were collateralized by the majority of our owned golf and country clubs, the two full-service resorts that were sold in connection with the ClubCorp Formation, and the operations of the business, sports and alumni clubs. Payments on the notes were interest only during the term of the loans with principal due at maturity; interest rates were variable based on 30 day LIBOR rates.

        For all periods presented prior to November 30, 2010, balances under the 2006 Citigroup Debt Facility, as well as related interest expense including loan amortization fees have been allocated between ClubCorp's continuing and Non-Core discontinued liabilities based on relative asset balances. Management believes such allocations are reasonable.

        In July 2008, we paid $8.0 million in principal on the long term debt facility in conjunction with the refinancing of two properties described below. In October 2008, we voluntarily paid $12.4 million in principal on the long term debt facility. In May 2009, we paid $0.7 million in principal on the long term debt facility in conjunction with the sale of one property. In June 2009 and November 2009, we

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voluntarily paid $98.8 million and $20.6 million, respectively, in principal on the long term debt facility. In June 2010 and November 2010, we voluntarily paid $20.6 million and $50.4 million, respectively, in principal on the long term debt facility.

        On November 30, 2010, in connection with the ClubCorp Formation, we repaid $826.9 million in principal on the long term debt facility and $105.3 million on the revolving loan facility and Citigroup forgave the remaining $342.3 million of debt under 2006 Citigroup Debt Facility thereby terminating the 2006 Citigroup Debt Facility. The resulting gain of $342.3 million was recorded in Gain on Extinguishment of Debt in the consolidated statement of operations.

        The debt allocated to the Non-Core discontinued operations of $266.1 million is included in liabilities of discontinued Non-Core Entities as of December 29, 2009, and was repaid as part of the 2010 net distribution to KSL affiliates attributable to the sale of Non-Core Entities and the ClubCorp Formation.

        2010 Citigroup Debt Facility—On November 30, 2010, we entered into the Senior Secured Credit Facility with Citigroup which is comprised of (i) a $310.0 million term loan facility and (ii) a revolving credit facility with a maximum borrowing limit of $50.0 million, which includes letter of credit and swing line facilities. The term loan facility matures November 30, 2016 and the revolving credit facility expires on November 30, 2015. Under the credit agreement, ClubCorp has the option to increase the term loan facility by up to $50.0 million and the revolving credit facility by up to an additional $25.0 million, both subject to conditions and restrictions in the credit agreement.

        All obligations under the Senior Secured Credit Facility are guaranteed by ClubCorp's immediate parent company, CCA Club Operations Holdings, LLC, and each existing and all subsequently acquired or organized direct and indirect restricted subsidiaries of ClubCorp (collectively, the "guarantors"), other than certain excluded subsidiaries. The Senior Secured Credit Facility is secured, subject to permitted liens and other exceptions, by a first-priority perfected security interest in substantially all the assets of ClubCorp, and the guarantors, including, but not limited to (1) a perfected pledge of all the domestic capital stock owned by ClubCorp and the guarantors, and (2) perfected security interests in and mortgages on substantially all tangible and intangible personal property and material fee-owned property of ClubCorp and the guarantors, subject to certain exclusions.

        We are required to make principal payments equal to 0.25% of the original term loan facility on the last business day of each of March, June, September and December beginning in March 2011. Beginning with the fiscal year ended December 27, 2011, we are required to prepay the outstanding term loan, subject to certain exceptions, by an amount equal to 50% of our excess cash flows, as defined by the credit agreement, each fiscal year end after our annual consolidated financial statements are delivered. This percentage may decrease if certain leverage ratios are achieved. Additionally, we are required to prepay the term loan facility with proceeds from certain asset sales or borrowings as defined by the credit agreement. The foregoing mandatory prepayments will be applied to the scheduled principal payments of the term loan facility in inverse order of maturity other than the principal payment due on the maturity date.

        We may voluntarily repay outstanding loans under the Senior Secured Credit Facility in whole or in part upon prior notice without premium or penalty, other than certain fees incurred in connection with repaying, refinancing, substituting or replacing the existing term loans with new indebtedness.

        The interest rate on the Senior Secured Credit Facility is the higher of (i) 6.0% or (ii) an elected LIBOR plus a margin of 4.5%. We may elect a one, two, three or six-month LIBOR. The interest payment is due on the last day of each elected LIBOR period.

        We are also required to pay a commitment fee on all undrawn amounts under the revolving credit facility, payable in arrears on the last business day of each March, June, September and December.

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        The credit agreement governing the Senior Secured Credit Facility limits ClubCorp's (and most or all of ClubCorp subsidiaries') ability to:

    •
    create, incur, assume or suffer to exist any liens on any of their assets;

    •
    make or hold any investments (including loans and advances);

    •
    incur or guarantee additional indebtedness;

    •
    enter into mergers or consolidations;

    •
    conduct sales and other dispositions of property or assets;

    •
    pay dividends or distributions on capital stock or redeem or repurchase capital stock;

    •
    change the nature of the business;

    •
    enter into transactions with affiliates; and

    •
    enter into burdensome agreements.

        As of December 28, 2010, we were in compliance with all covenant restrictions under the Senior Secured Credit Facility.

        In addition, the credit agreement governing the Senior Secured Credit Facility contains covenants that require ClubCorp and its restricted subsidiaries to maintain specified financial ratios on a rolling four quarter basis beginning with the fiscal quarter ending March 22, 2011 as shown in the following table:

 
   2011   2012   2013   2014   2015   2015 and
Thereafter 		 

Financial ratios:

                                      

Total adjusted debt to Adjusted EBITDA(1) ("Total Leverage Ratio")

                                      
 

Less than:

     6.55x     6.15x     5.35x     4.75x     4.50x     4.00x  

Adjusted EBITDA(1) to total adjusted interest expense ("Interest Coverage Ratio")

                                      
 

Greater than:

     1.85x     1.95x     2.15x     2.30x     2.50x     2.75x  

        While the debt covenants are not in effect until the end of our first quarter, 2011, the following table shows the financial ratios as of December 28, 2010 for continuing operations:

 
   Fiscal Year Ended
December 28, 2010 		 
 
   (dollars in thousands)
  

Adjusted EBITDA(1)

   $ 152,242  

Total adjusted debt(2)

   $ 765,571  

Total adjusted interest expense(3)

   $ 33,405  

Financial ratios:

        
 

Total Leverage Ratio

     5.03x  
 

Interest Coverage Ratio

     4.56x  
(1)
EBITDA is calculated as net income plus interest, taxes, depreciation and amortization less interest and investment income. Adjusted EBITDA ("Adjusted EBITDA") is based on the definition of Consolidated EBITDA defined in the credit agreement governing our Senior Secured Credit Facility and may not be comparable to other companies. We have included Adjusted EBITDA because the credit agreement governing our Senior Secured Credit Facility has covenants

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    that apply the Total Leverage Ratio and Interest Coverage Ratio described above, which utilize this measure of Adjusted EBITDA. Adjusted EBITDA excludes certain items. Adjusted EBITDA is not a measure determined in accordance with generally accepted accounting principles ("GAAP") and should not be considered as an alternative to, or more meaningful than, net income (as determined in accordance with GAAP) as a measure of our operating results or net cash provided by operating activities (as determined in accordance with GAAP) as a measure of our liquidity.

    The reconciliation of our net (loss) income to EBITDA and Adjusted EBITDA is as follows:

 
   Fiscal Years Ended  
 
   December 30,
2008 		  December 29,
2009 		  December 28,
2010 		 
 
   (dollars in thousands)
  

Net (loss) income

   $ (69,581 ) $ (31,504 ) $ 252,877  

Interest expense

     94,583     58,383     57,165  

Income tax expense

     (17,803 )   (958 )   57,109  

Interest and investment income

     (4,290 )   (2,684 )   (714 )

Depreciation and amortization

     101,724     98,619     92,673  
               

EBITDA

     104,633     121,856     459,110  

Management fees(a)

     1,339     1,135     1,150  

Impairments and write-offs(b)

     2,642     11,808     9,243  

Employee termination costs(c)

     3,273     1,698     529  

Foreign currency gain(d)

     5,971     (118 )   146  

Noncontrolling interest—expense(e)

     348     36     346  

Acquisition transaction adjustment—revenue(f)

     18,705     13,681     9,274  

Acquisition transaction adjustment—equity investment basis(g)

     2,070     2,045     2,048  

Discontinued and divested operations loss(h)

     27,718     12,282     8,725  

Equity investment expense net of cash distributions(i)

     (220 )   27     354  

Loss/gain on disposals and acquisitions of assets(j)

     3,880     6,473     (5,351 )

Franchise taxes(k)

     72     280     270  

Non-cash gains related to mineral rights(l)

     (6,166 )   (5,088 )   (3,927 )

Unclaimed property accrual(m)

     —     3,024     —  

Acquisition transaction costs(n)

     1,774     —     —  

Business interruption reimbursements(o)

     (943 )   (816 )   —  

Change in fair value of interest rate cap agreements(p)

     10,454     (2,624 )   3,529  

Costs of surety bonds(q)

     26     16     26  

Non-recurring charges(r)

     —     —     752  

Gain on extinguishment of debt(s)

     —     —     (334,412 )

Property tax accrual—California Proposition 13(t)

     418     430     430  
               

Adjusted EBITDA

   $ 175,994   $ 166,145   $ 152,242  
               
(a)
Represents management fees and expenses paid to an affiliate of KSL.

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(b)
Represents impairment charges related to impairment of trade names and impairment of carrying value of assets.

(c)
Represents employee termination costs from reductions in force.

(d)
Represents currency translation gains and losses.

(e)
Represents income or expense attributable to noncontrolling equity interests of continuing operations.

(f)
Represents revenues relating to initiation deposits and fees that would have been recognized in the applicable period had such deferred revenue not been written off in connection with the purchase of ClubCorp, Inc. by affiliates of KSL on December 26, 2006.

(g)
Represents amortization of step-up in basis of joint venture investments recorded as part of purchase of ClubCorp, Inc. by affiliates of KSL on December 26, 2006.

(h)
Represents income (loss) from discontinued operations and income (loss) from discontinued Non-Core Entities.

(i)
Represents equity investment income or expense less an amount equal to the actual cash distributions from said investments.

(j)
Represents gain or loss on disposals and write-offs or acquisitions of fixed assets and businesses in ordinary course of business.

(k)
Represents franchise and commercial activity taxes for certain states that are based on equity, net assets or gross revenues.

(l)
Represents amortization of deferred revenue related to proceeds received from third parties in connection with certain surface right agreements that allow them to explore for and produce oil and natural gas on certain properties.

(m)
Represents accrual for estimated liability related to ongoing unclaimed property exposure.

(n)
Represents legal and professional fees related to the acquisition of ClubCorp, Inc. by affiliates of KSL on December 26, 2006.

(o)
Represents business interruption insurance proceeds received from insurance carriers in 2008 for the Oak Pointe County Club clubhouse fire and in 2009 for the April Sound Country Club clubhouse fire.

(p)
Represents change in the fair value of our interest cap agreements.

(q)
Represents costs of our surety bonds relating to financing activities.

(r)
Represents non-recurring charges in connection with the ClubCorp Formation.

(s)
Represents the gain on extinguishment of debt in connection with the ClubCorp Formation.

(t)
Represents accrual for estimated property tax liabilities related to the state of California's Proposition 13 resulting from the acquisition of ClubCorp, Inc. by affiliates of KSL on December 26, 2006.

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(2)
The reconciliation of our long-term debt to adjusted debt is as follows:

 
   Fiscal Year Ended
December 28, 2010 		 
 
   (dollars in thousands)
  

Long-term debt (net of current portion)

   $ 772,079  

Current maturities of long-term debt

     11,195  

Outstanding letters of credit(a)

     17,297  

Adjustment per credit agreement(b)

     (35,000 )
       

Total adjusted debt

   $ 765,571  
       
(a)
Represents total outstanding letters of credit.

(b)
Represents adjustment per the Senior Secured Credit Facility. Long-term debt is reduced by the lesser of (1) $35.0 million and (2) total unrestricted cash and cash equivalents.
(3)
The reconciliation of our interest expense to adjusted interest expense is as follows:

 
   Fiscal Year Ended
December 28, 2010 		 
 
   (dollars in thousands)
  

Interest expense

   $ 57,165  

Less: Interest expense related to Membership deposit liabilities(a)

     (20,114 )

Less: Loan origination fee amortization(b)

     (3,371 )

Less: Revolver commitment fees(c)

     (19 )

Add: Capitalized interest(d)

     115  

Add: Net payments for interest rate cap(e)

     208  

Add: Interest income

     (579 )
       

Total adjusted interest

   $ 33,405  
       
(a)
Represents amortization of discount on membership deposit liabilities.

(b)
Represents amortization of loan origination fees on long-term debt.

(c)
Represents commitment fees for revolver facility.

(d)
Represents capitalized interest.

(e)
Represents net payments for interest rate cap agreement entered into December 2010.

        Subject to certain exceptions, the indenture governing the notes permits us and our restricted subsidiaries to incur additional indebtedness, including secured indebtedness.

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Senior Unsecured Notes

        On November 30, 2010, we issued $415.0 million in senior unsecured notes, bearing interest at 10.0% and maturing December 1, 2018. The interest is payable semiannually in arrears on June 1 and December 1 each year, beginning June 1, 2011. The indenture governing the notes limits our (and most or all of our subsidiaries') ability to:

    •
    incur, assume or guarantee additional indebtedness;

    •
    pay dividends or distributions on capital stock or redeem or repurchase capital stock;

    •
    make investments;

    •
    enter into agreements that restrict the payment of dividends or other amounts by subsidiaries to us;

    •
    sell stock of our subsidiaries;

    •
    transfer or sell assets;

    •
    create liens;

    •
    enter into transactions with affiliates; and

    •
    enter into mergers or consolidations.

Subject to certain exceptions, the indenture governing the notes permits us and our restricted subsidiaries to incur additional indebtedness, including secured indebtedness. As of December 28, 2010, we were in compliance with all covenant restrictions under the indenture governing the notes.

Mortgage Loans

        In July 2008, we entered into a new mortgage loan with General Electric Capital Corporation ("GECC") for $32.0 million of debt maturing in July 2011 with 25-year amortization. We have the right to extend the term of the loan for successive years up to July 2013 upon satisfaction of certain conditions of the loan agreement. As of December 28, 2010, we meet the conditions and intend to extend the loan to July 2012. The loan is collateralized by the assets of two golf and country clubs.

        In October, 2010, we entered into a new mortgage loan with Atlantic Capital Bank for $4.0 million of debt maturing in 2015 with 25-year amortization. The loan is collateralized by the assets of one golf and country club. Interest rates are variable based on 30-day LIBOR rates.

        As of December 28, 2010, our other debt and capital leases totaled $22.3 million.

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    Off-Balance Sheet Arrangements, Contractual Obligations and Commercial Commitments

        We are not aware of any off-balance sheet arrangements as of December 28, 2010. The following tables summarize our total contractual obligations and other commercial commitments and their respective payment or commitment expiration dates by year as of December 28, 2010:

Contractual Obligations

 
   Payments due by Period  
 
   Total   Less than
one year 		  1 - 3 years   3 - 5 years   More than
five years 		 
 
   (dollars in thousands)
  

Long-term debt(1)

   $ 765,182   $ 3,120   $ 39,352   $ 9,456   $ 713,254  

Interest on long-term debt(2)

     448,074     62,287     124,669     120,812     140,306  

Capital lease obligations

     18,092     8,075     8,707     1,310     —  

Membership deposits(3)

     263,328     51,704     29,209     31,388     151,027  

Other long-term obligations(4)

     18,120     6,544     5,701     2,731     3,144  

Operating leases

     193,459     20,957     37,368     32,192     102,942  
                       

Total contractual cash obligations(5)

   $ 1,706,255   $ 152,687   $ 245,006   $ 197,889   $ 1,110,673  
(1)
Long term debt consists of $310.0 million under the Senior Secured Credit Facility, $415.0 million outstanding notes and $40.2 million of other debt. Our new revolving credit facility of $50.0 million under the Senior Secured Credit Facility is not included in long-term debt.

(2)
Interest on long-term debt includes interest of 10.0% on our $415.0 million outstanding notes, interest on our $310.0 million secured term loan facility, interest on the GECC mortgage loan and interest on all other debt. Interest on the secured term loan facility is the higher of (i) 6.0% or (ii) an elected LIBOR plus a margin of 4.5% less the impact of the interest rate cap agreement that limits our exposure on the elected LIBOR to 3.0% on a notional amount of $155.0 million. For purposes of this table, we have assumed an interest rate of 6.0% on the secured term loan facility for all future periods which is the rate as of December 28, 2010.

(3)
Represents the estimated fair value of initiation deposits based on the discounted value of future maturities using our weighted average cost of capital. See Note 2 of the notes to the audited consolidated financial statements included elsewhere in this prospectus. The initiation deposits are refundable at maturity upon written notice by the member and we have redeemed approximately 1.6% of total deposits received as of December 28, 2010. The present value of the initiation deposit obligation is recorded as a liability on our consolidated balance sheets and accretes over the nonrefundable term using the effective interest method. At December 28, 2010, the gross amount of the initiation deposit obligation was $683.6 million.

(4)
Consists of insurance reserves for general liability and workers' compensation of $18.1 million, of which $6.5 million is classified as current.

(5)
Excludes obligations for uncertain income tax positions of $45.7 million. We are unable to predict when, and if, cash payments on any of this accrual will be required.

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Commercial Commitments

 
   Total   Less than
one year 		  1 - 3 years   3 - 5 years   More than
five years 		 
 
   (dollars in thousands)
  

Standby letters of credit(1)

   $ 17,297   $ 17,297   $ —   $ —   $ —  

Capital commitments(2)

     6,462     6,462     —     —     —  
                       

Total commercial commitments

   $ 23,759   $ 23,759   $ —   $ —   $ —  
                       
(1)
Standby letters of credit are primarily related to security for future estimated claims for workers' compensation and general liability insurance and collateral for our surety bond program. Our commitment amount for insurance-related standby letters of credit is gradually reduced as obligations under the policies are paid. See contractual obligations table above regarding reserves for workers' compensation and general liability insurance.

(2)
We have capital commitments at certain of our clubs related to future construction or capital contributions after the developer or contractor has completed construction.

        We are jointly and severally liable for pension funding liabilities associated with the Homestead Retirement Plan, relating to one of the resorts we sold in connection with the ClubCorp Formation. As of December 28, 2010, the underfunded amount of the projected benefit obligation for such plan was approximately $7.1 million. Significant adverse changes in the capital markets could cause the actual amount of underfunding to be higher than projected. If we are found liable for any amounts with respect to this plan, the payment of such liability, if material, could adversely affect our financial condition and results of operations.

Inflation

        Inflation has not had a significant impact on us. As operating costs and expenses increase, we generally attempt to offset the adverse effects of increased costs by increasing prices in line with industry standards. However, we are subject to the risks that our costs of operations will increase and we will be unable to offset those increases through increased dues, fees or prices without adversely affecting demand. In addition to inflation, factors that could cause operating costs to rise include, among other things, increased labor costs, lease payments at our leased facilities, energy costs and property taxes.

Recently Issued Accounting Pronouncements

        A portion of Accounting Standards related to "Improving Disclosures about Fair Value Measurements" will become effective for interim and annual reporting periods beginning after December 15, 2010. This portion requires disclosure of purchases, sales, issuances and settlements in the reconciliation of Level 3 fair value measurements, as well as more detailed disclosures of Level 3 inputs. The impact of the adoption of this portion of the standard will require expanded disclosures in our 2011 consolidated financial statements.

Quantitative and Qualitative Disclosures about Market Risk

    Interest rate risk

        Our indebtedness consists of both fixed and variable rate debt facilities. The interest rate on our Senior Secured Credit Facility is the higher of (i) 6.0% ("Floor") or (ii) an elected LIBOR plus a margin of 4.5% less the impact of the interest rate cap agreement that limits our exposure on the elected LIBOR to 3.0% on a notional amount of $155.0 million. As of December 28, 2010, the LIBOR rate was 0.3%; therefore, our interest rate was the Floor. The LIBOR rate would have to exceed 1.5%

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to overcome the Floor. As of December 28, 2010, our variable rate debt consisted of $36.0 million of mortgage notes, which carry variable interest rates based on the 30-day LIBOR plus a specified margin. A hypothetical 0.50% increase in LIBOR rates applicable to borrowings under our variable rate debt instruments would result in an estimated increase of $0.2 million per year of interest expense.

    Foreign currency exchange risk

        Our investments in foreign economies includes three golf properties in Mexico and one business club in China. Conducting business in currencies other than U.S. dollars subjects us to fluctuations in currency exchange rates that could have a negative impact on our financial results. We translate the value of foreign currency denominated amounts into U.S. dollars and we report our consolidated financial results of operations in U.S. dollars. Because the value of the U.S. dollar fluctuates relative to other currencies, revenues that we generate or expenses that we incur in other currencies could significantly increase or decrease our revenues or expenses as reported in U.S. dollars. Total foreign currency denominated revenues and expenses comprised approximately 1.1% and 1.3% of our consolidated revenues and expenses, respectively, for fiscal year ended December 28, 2010.

        Fluctuations in the value of the U.S. dollar relative to other currencies could also significantly increase or decrease foreign currency transaction gains and losses which are reflected as a component of club operating costs. Total foreign currency transaction losses for the fiscal year ended December 28, 2010 were $0.1 million.

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 BUSINESS

Overview

        We are one of the largest owners and managers of private golf, country, business, sports and alumni clubs in North America, with a network of clubs that includes over 147,000 memberships and 350,000 individual members. As of December 28, 2010, we owned or operated 98 golf and country clubs and 55 business, sports and alumni clubs in 25 states, the District of Columbia, and two foreign countries. Our business is a relationship business with a member-oriented philosophy. As a result, we position our clubs to provide our members with comprehensive facilities and programs, as well as sports and social interactions, which provide a focal point for the local community. We believe that our expansive network of clubs and our focus on facilities, recreation and social programming differentiates us from our competitors and enhances our ability to attract members across a number of desirable demographic groups. Most importantly, our clubs offer a lifestyle that is designed to appeal to the entire family, resulting in member loyalty which we believe translates financially into a more economically resilient leisure product and allows us a greater ability to capture discretionary leisure spending than traditional clubs. A significant percentage of our revenues are derived from membership dues, which provides a stable recurring revenue base. Furthermore, the geographic diversity of our clubs, limits the impact of adverse regional weather patterns and economic conditions.

        Our portfolio of golf properties includes a broad offering of clubs designed to appeal to a diverse membership base but with a specific focus on the mass affluent market segment, which we define as households with annual income of $75,000 or greater. These clubs include marquee world-renowned golf clubs, such as the Firestone Country Club in Akron, Ohio (site of the World Golf Championships—Bridgestone Invitational) and Mission Hills Country Club in Rancho Mirage, California (home of the Kraft Nabisco Championship). In addition to the clubs mentioned above, we own established regional and local private golf and country clubs that we believe are conveniently located to our members. These include clubs in urban and suburban locations, such as Gleneagles Country Club (over 1,700 members as of December 28, 2010) outside of Dallas, Texas, and Coto de Caza Golf & Racquet Club (over 1,800 members as of December 28, 2010) in Orange County, California. We also own and manage well known business, sports and alumni clubs, such as the Boston College Club in Boston, Massachusetts, the Metropolitan Club in Chicago, Illinois, the City Club of Washington in Washington, D.C., and the University of Texas Club in Austin, Texas. Our alumni clubs are associated with universities with significant alumni networks, and are designed to provide a connection between the university and its alumni and faculty. Our business clubs are generally located in office towers or business complexes and cater to business executives, professionals and entrepreneurs with a need to meet, network and socialize in a private, upscale location. Our sports clubs include a variety of fitness and racquet facilities. In addition, we offer a network of products, services and amenities through membership upgrades that provide access to our extensive network of clubs and leverage our alliances with other clubs, facilities and properties. For example, for incremental monthly dues our reciprocal access program allows our members to have access to clubs in certain geographical areas, which is arranged by our in-house travel concierge.

        Founded in 1957 with one country club in Dallas, Texas, we were one of the first companies to enter into the professional ownership and operation of golf and country club businesses. In 1966, we established our first business club on the belief that we could profitably expand our operations by applying our golf club management skills and member-oriented philosophy to a related line of business. In 1999, having reached a critical mass, we began selling various upgrade programs that offer participating members reciprocal access to virtually all of our clubs, providing our members more choices for a wide variety of products, services and amenities. As of December 28, 2010, over 38% of our members take advantage of one or more of our membership upgrade programs, that offer participating members access to virtually all of our clubs and other clubs, facilities and properties through usage arrangements, for incremental monthly dues, a key element of ClubCorp's business

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strategy. We remained family owned until December 2006, when we were acquired for $1.6 billion by affiliates of KSL, a private equity firm specializing in travel and leisure businesses.

        Our operations are organized into two principal business segments: (1) golf and country clubs, which accounted for 75.0% of consolidated operating revenues for 2010 and (2) business, sports and alumni clubs, which accounted for 25.0% of consolidated and combined operating revenues for 2010.

        The following charts provide a breakdown of consolidated operating revenues from continuing operations for 2010 by type and by region:

Consolidated Revenue by Type   Consolidated Revenue by Region

GRAPHIC
 
GRAPHIC

        The golf industry is a highly fragmented competitive landscape with approximately 4,300 private golf clubs in the United States, and just 11.8% of which were under corporate management according to the National Golf Foundation. The top 12 golf management companies, including ClubCorp, own or manage just 292 golf clubs, or 6.8% of all private golf clubs. We believe that there are just four companies that each own or operate more than 25 private golf and country clubs in the United States. In addition, based on statistics provided by the National Golf Foundation, we believe we are the largest owner and manager of private golf clubs, with nearly twice as many private golf clubs as our closest competitor.

        As one of the largest owners of private clubs in the United States, we enjoy substantial economies of scale in management, marketing and purchasing over member owned and individual private clubs. For example, we are a member of a purchasing cooperative of hospitality companies, which allows us to better control costs associated with operating our clubs. We also publish our own award-winning quarterly lifestyle magazine, Private Clubs, which we use to showcase our facilities, our strategic products and services, marketing relationships and other content that is relevant to our members. We are able to pass along to our members the value derived from these economies of scale in the form of professional management, lower costs, access to multiple clubs and greater amenities and benefits of membership. This helps to further differentiate our clubs from those of our competitors, thereby further driving membership retention and growth.

Competitive Strengths

        We became a leader in the private club industry by following our quality of service and member-oriented philosophies and by taking advantage of a variety of organic growth opportunities, including the implementation of network offerings of products, services and amenities, and external growth

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opportunities, such as through the acquisition and rehabilitation of underperforming clubs. We intend to maintain our leadership position by continuing to capitalize on the following competitive strengths:

    •
    Strong and Diverse Network of Clubs.  We believe we have a diverse portfolio of clubs anchored by marquee assets and complimented by local clubs woven into the community of our members. Additionally, a majority of our clubs are protected from new competition due to their location in densely populated areas where land of sufficient size to develop competing clubs is unavailable or prohibitively expensive. As of December 28, 2010, we had 153 facilities in 25 states, Washington D.C. and two foreign countries, with strategic concentrations in strong golf markets and major metropolitan areas. As a result of this size and geographic diversity, our operating revenues and cash flows are not reliant on any one property. Our most significant country club facility, Firestone Country Club, accounted for 3.0% of our consolidated operating revenues and our 10 largest clubs accounted for 23.2% of our consolidated operating revenues for the fiscal year ended December 28, 2010. The breadth of our portfolio of facilities and the broad geographic distribution of our operations limits the impact of adverse regional weather patterns and fluctuations in regional economic conditions.

      Our expansive network of clubs allows us to provide members with product diversity by offering a range of high-end to entry-level clubs. Product diversity and the ability for members to access our clubs on a national level by participating in one of our membership upgrade programs, makes the club experience available to and affordable for, a variety of individuals within the mass affluent market that we target. We believe our policy of not assessing members additional dues to fund capital expenditure projects provides our members greater certainty as to the financial commitment to our clubs, which differentiates our product compared to smaller competing clubs and enhances our membership retention.

      Our extensive network of clubs and alliances with other clubs, facilities and properties also allow us to provide numerous services and amenities to our members that are not available from individual privately owned clubs. Over 38.0% of our members take advantage of one or more of our membership upgrade programs, which provide access to our network of clubs and other clubs, facilities and properties for incremental monthly dues. The benefits of these programs extend beyond our clubs. Including our clubs, we have arranged for access privileges with over 150 country clubs for golf and over 65 business clubs for dining, all for the benefit of our members. We have also established arrangements with restaurants such as Emeril Lagasse and The Capital Grille, resorts such as Barton Creek Resort & Spa and The Homestead, and hotels such as The Ritz-Carlton, Hyatt, and numerous other alliances that provide additional products, services and amenities to our members further enhancing the value proposition for our members. We make reservations within our network of clubs and other properties convenient for members by providing an in-house travel concierge (ClubLine), and by offering access to an inventory of VIP tickets through our own web portal (TicketLine).

    •
    Marquee Collection of Assets.  We believe that we have assembled a portfolio of some of the best known golf and business clubs across the United States and that these properties help distinguish us from our competitors. Examples of our clubs include iconic assets, such as Firestone Country Club in Akron, Ohio (site of the World Golf Championships—Bridgestone Invitational) and Mission Hills Country Club in Rancho Mirage, California (current home of the Kraft Nabisco Championship) and well known business, sports and alumni clubs, such as Boston College Club in Boston, Massachusetts, the Metropolitan Club in Chicago, Illinois, the City Club of Washington in Washington, D.C., and the University of Texas Club in Austin, Texas.

      Many of our country clubs are located in densely populated areas where land use and other regulatory limitations or the ability to acquire land of sufficient size to develop a new country club or golf facility makes creating a new club impractical or prohibitively expensive. For

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      example, Morgan Run Club & Resort, in the San Diego, California metropolitan area, was established in 1968, and Braemer Country Club, in the Los Angeles, California metropolitan area, was established in 1961. We believe our clubs are among the top private golf clubs within our respective submarkets based on the quality of our facilities, breadth of our amenities and consistent high quality programs and events. Additionally, we have invested over $247.4 million of capital since 2007 on new family water recreation facilities, fitness centers, clubhouses and complete renovations at a number of our clubs. These strategic capital investments have been targeted at maintaining the attraction and relevance of our clubs and cater to the evolving needs of current and prospective members.

      We are the fee simple real estate owners for 75 of our 98 golf and country clubs, which we believe enhances our ability to maximize the value of our clubs and business. By owning the real estate underlying our clubs, we have been able to implement capital plans as we see fit and generate returns on our investments. In addition, past real estate market conditions have permitted us to sell a portion of our real estate while maintaining the full function and attractiveness of our clubs. For example, in 2005 at the Aliso Viejo Golf Club in Aliso Viejo, California, we sold 9 holes and a driving range as raw land to Shea Homes for net proceeds of approximately $85 million to be developed as a single family community of 502 homes. We redeveloped the remaining 18 holes of the Aliso Viejo Golf Club into a private country club, which we completed in 2008.

      Furthermore, our business, sports and alumni clubs are typically viewed as an attractive amenity of the office tower, business park or stadium in which we operate. This dynamic facilitates our ability to procure attractive lease terms and obtain investment from our landlords. In 2010, we negotiated a lease modification in connection with the relocation of the Commerce Club in the same building located in Atlanta, Georgia whereby the landlord provided $2.3 million in tenant improvement contributions towards approximately $6.5 million in design and construction.

    •
    Large, Stable Membership Base with Attractive Member Demographics.  Our large and stable base of memberships creates a significant recurring revenue stream. Over the past ten years, our membership base has averaged approximately 162,000 memberships, and as of December 28, 2010, our membership count included over 147,000 memberships, including members of all owned and managed clubs. While membership count stands at a 10 year low and approximately 13.8% below peak 2006 levels, our membership count has proven resilient despite the recent economic downturn and provides us with a growth opportunity as general economic conditions continue to stabilize. For the fiscal year ended December 28, 2010, membership dues were $330.5 million, representing 47.4% of our consolidated operating revenues. For the fiscal year ended December 28, 2010, our membership retention was 82.8% in golf and country clubs and 75.8% in business, sports and alumni clubs for a blended average total company retention rate of 79.4%.

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ClubCorp Long Term Membership Count and Retention Level

GRAPHIC

Note: Membership for the fiscal year ended December 28, 2010 was 147,687 and annualized retention for the fiscal year ended December 28, 2010 was 79.4%.

      In addition, we believe our members represent a highly attractive captive customer base for the goods and services delivered at our clubs. According to our own 2010 spend and visitation data, the average member visits one of our clubs over 25 times per year with an average spend of $3,300 annually per membership, including dues, and, specifically, the average golf member visits one of our clubs 40 times per year with an average spend of $4,700 annually per membership, including dues. We believe the combination of the financial resources of our members and the sense of belonging fostered by our member-oriented philosophy drives loyalty and frequent use of our clubs and lessens our sensitivity to adverse economic conditions.

      We believe the strength and resiliency of our membership base is driven by (1) the integral role our clubs play in the social lives and community of our members, (2) the financial commitments made by our members through initiation payments and (3) our no-assessment policy, which provide our members with greater certainty as to the financial commitment to our clubs.

    •
    Host of High Profile Golf Events and Winner of National Accolades.  Each year, we host a number of high profile events and win numerous local and national awards which generate substantial publicity and help drive new membership and club utilization. In 2010, we hosted four nationally recognized golf tournaments affiliated with the PGA Tour, the LPGA Tour, the Champions Tour, and the R&A Group, which organizes and stages The Open Championship, golf's oldest major. We believe we have established a strong working relationship with these golf organizations. Tournaments hosted by us during 2010 include the Bridgestone Invitational at Firestone Country Club, the Kraft Nabisco Championship at Mission Hills Country Club, the Triton Financial Classic at the Hills Country Club at Lakeway and the British Open qualifier at Gleneagles Country Club. Our clubs perennially appear on national and local "best of" lists for golf, tennis and dining. In 2010, Firestone Country Club ranked 11th on the Golf World Readers' Choice Awards—Top 50 Private Clubs, Diamante Golf Club ranked 38th on America's 50 Toughest Golf Courses, and Southern Trace Country Club, the Hills Country Club at Lakeway and Diamante Golf Club were each named in their respective states to the Golf Digest "Best by State" rankings.

    •
    Experienced Management Team.  We believe we have some of the most experienced and dedicated professional managers and executives in the private club industry. As of the date of this

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      prospectus, our eight executive officers had a combined 90 years of related career experience, including 48 years of hospitality and club specific experience. In addition, we have attracted and retained qualified, dedicated managers for our clubs. As of December 28, 2010, our club general managers had an average of 10 years of service with us, collectively operated an aggregate of over 2,300 holes of golf and managed approximately 1.7 million square feet of business clubs, which combined hosted over 87,000 corporate and social banquet and catering events as well as over 4,700 organized golf outings in the fiscal year ended December 28, 2010.

      ClubCorp benefits from having a sector-focused Sponsor with long-term operating experience. Specifically, KSL invests primarily in travel and leisure businesses, an area in which the members of its investment team have specialized for over twenty years.

Business Strategy

        Fundamental to ClubCorp's business is the belief that private clubs represent a significant business opportunity for a company to apply professional sales and management skills with the dedication to personal service necessary to attract and retain members. Our principal objective is to maximize our revenues and profitability by providing a superior delivery of high quality club and golf experiences to our members and guests. To achieve this objective, we intend to continue to:

    •
    Grow Membership Enrollment and Increase Facility Usage.  We believe that providing our members and their guests with a high-quality and personalized experience will increase demand for our facilities and services and allow us to add new memberships. As of December 28, 2010, our golf and country club memberships were at 72.0% of golf member capacity across our portfolio of properties, which means that we have significant capacity to add additional golf memberships at most of our facilities. Given the breadth of our network in many areas, we are able to offer memberships that provide access to multiple facilities and accordingly can operate at capacity while still providing superior service. In addition, most of our golf and country clubs offer social memberships with access to our dining facilities, member programming, social events, and fitness facilities which are not capped by the golf course capacity constraints. Finally, our business, sports and alumni clubs do not generally have strict capacity constraints and we believe that we have the ability to add a significant number of additional members to many of these facilities.

      We continually review our membership base, leading to a better understanding of our membership demographics and psychographics and allowing us to better target member prospects. We are currently undertaking a number of initiatives to grow our membership base, including membership programming initiatives aimed at certain underrepresented demographic groups at our clubs, such as executive women and young executives. Since its inception in April 2009, we have added over 2,400 members under the age of 40 to our clubs in Dallas and Houston by creating a young executive membership program with features such as multiple club access, professional networking events and discounted initiation payments and dues, designed especially for that age group. We believe that we have the experience and management skills necessary to continue to increase the utilization of our facilities while maintaining member satisfaction levels.

    •
    Leverage Our Existing Customer Base by Cross-Selling Our Products and Services to Existing Members and Guests. We believe that there are significant opportunities to increase operating revenues by marketing our interrelated products and innovative programs to our existing members. The membership upgrade programs that we began offering in 1999 are purchased by over 38% of our members as of December 28, 2010. We have recently begun to bundle additional products together, allowing our members to benefit from our network of clubs while at the same time receiving significant benefits at their home club. These programs are designed

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      to increase our recurring monthly revenues while at the same time providing a very significant value proposition to our members to drive increased usage of our facilities.

    •
    Distinguish and Market Our Properties and Company Brand Names.  We believe that many of our country clubs, such as Firestone, offer members an experience that combines world class golf facilities and dining opportunities, in an attractive and desirable setting. We seek to develop and accentuate the desirable aspects of our country clubs in order to attract new members and retain existing members, encourage group guests to return individually and increase rates charged for our services and amenities. Key elements of our strategy include making our properties more family friendly through the addition of family water recreation facilities, fitness centers, contemporary and casual dining venues and youth programming. Additionally, our extensive network of business, sports and alumni clubs provides our members access to a network of other civic and business leaders and our clubs endeavor to host high profile social and civic events in order to become central to the business and civic life of the community in which they operate.

    •
    Profit From Previous Significant Capital Expenditure Projects.  Since the beginning of fiscal year 2007, we have invested over $247.4 million in our continuing operations, or 8.4% of our total consolidated operating revenues, to complete significant expansion and replacement projects at many of our facilities, including the addition of a family water recreation facility and fitness center at The Clubs of Kingwood at Kingwood in Houston, Texas, the addition of a new fitness center at Morgan Run Club & Resort in Rancho Santa Fe, California, the redevelopment from daily-fee into a private club of Aliso Viejo Golf Club in Aliso Viejo, California, and the complete renovation of the Buckhead Club in Atlanta, Georgia, the Mid-America Club in Chicago, Illinois, the Tower Club in Dallas, Texas and the University Club atop Symphony Towers in San Diego, California, the Commerce Club in Atlanta, Georgia, and the Citrus Club in Orlando, Florida. As of December 28, 2010, we were also in the process of completing renovations at Braemar Country Club in Los Angeles, California. We believe that there are additional opportunities to increase revenues and generate a positive return on investment through additional expansion and replacement projects at a number of our other facilities.

      The capital investments made to our Houston, Texas area clubs, the Clubs of Kingwood at Deerwood and the Clubs of Kingwood at Kingwood, which are collectively known as The Clubs of Kingwood, demonstrate how we are profiting from previous capital expenditure projects. Over an 18 month period of time spanning all of 2007 through mid-2008, we invested approximately $9.9 million to build and furnish an approximately 17,700 square foot fitness center and a family water recreation facility with pools and slides. Despite the ongoing economic recession in the Houston market, The Clubs of Kingwood has improved operating performance significantly compared to pre-construction levels, increasing revenue by 10.7%, from year-end 2006 through the fiscal year ended December 28, 2010.

    •
    Focus on Selected Acquisitions and Opportunities to Expand our Business.  We continually evaluate opportunities to expand our business through select acquisitions of attractive properties. In addition, we regularly evaluate joint ventures and management agreements, which allow us to expand our operations and potential revenues base without making substantial capital expenditures. We believe that the fragmented nature of the private club industry presents significant opportunities for us to grow our operations by leveraging our operational expertise and platform. We also believe that the current U.S. economic downturn and the financial difficulties this is causing for many member-owned and individually owned clubs and developers is presenting us with numerous attractive and complementary acquisition opportunities at compelling valuations. When we do make strategic acquisitions, we do so only after a rigorous evaluation to satisfy ourselves that we can add value given our external growth experience, facility assessment capabilities and economies of scale. For example, we recently acquired the Country Club of the South outside of Atlanta, Georgia out of foreclosure for approximately $7.4 million, or less than one-third of replacement cost.

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Industry Trends

        We primarily operate private golf and country clubs, for which we believe demand is generally more resilient to economic cycles than public golf facilities and other hospitality assets. We expect that positive long-term recreational, travel and tourism spending trends and demographic shifts will increase the demand for our clubs and services generally and our golf-related services in particular.

    •
    Favorable Golf Industry Trends.  The golf industry is highly fragmented, characterized by stabilizing supply and demand, varied ownership structures and strong consumer appeal. Reports prepared by the National Golf Foundation show that during the 1990s, the industry suffered an overbuilding of public golf facilities. According to the National Golf Foundation, over 3,160 public golf facilities opened during the 1990s, increasing the supply of public golf by 39%. Not coincidentally, according to information provided by the National Golf Foundation, the influx of public golf caused the closure or conversion of 520 private clubs, or 11% of the private clubs supply, during the 1990s. During the 2000s, growth slowed as the industry struggled to absorb the new supply. From 2000 through 2010, National Golf Foundation data shows that a net 431 public golf facilities have been added to U.S. golf supply and a net 28 private golf clubs have been closed, translating to 0.4% and -0.1% compound annual growth rates, respectively. At year end 2010, based on a count by the National Golf Foundation, total U.S. golf supply stood at 15,890 facilities comprised of 4,262 private golf clubs and 11,628 public facilities.

      The National Golf Foundation data shows that since 2006, golf industry supply has declined, which indicates that the industry is still overcoming a supply and demand imbalance caused by a dramatic increase in the number of facilities in the 1990s. According to the National Golf Foundation, 2010 represented the fifth consecutive year in which facility closures outnumbered openings with 75 net 18-hole equivalent golf facility closures.

Number of Golf Clubs

  

Domestic Net Course Openings


GRAPHIC

 

GRAPHIC

Source: National Golf Foundation

  

Source: National Golf Foundation
    •
    Attractive Demographic Trends.  According to data contained in a publication by the National Golf Foundation, the typical private club member is 55 years old with a $124,000 annual household income; whereas, the typical public golfer is 47 years old with a $94,600 annual household income. Furthermore, survey data, provided by the National Golf Foundation, of qualified private club prospects (households that have expressed a high level of interest in club membership, have annual incomes over $100,000, and are between 30 and 60 years old) indicate a demographic profile of 45 years old with a $142,600 annual household income. The National Golf Foundation concludes the pipeline of qualified member prospects looks a lot like current members, but they are somewhat younger and more affluent. What they lack is time-based on the National Golf Foundation statistics they currently play half as many rounds of golf per year

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      than current members play—and as they shift from peak career towards retirement, the lifestyle afforded by a private club membership appears highly relevant. In response to the younger age of our prospective members, we have invested in family amenities that broaden the appeal of our clubs. Additionally, we believe core and avid golfers, which according to the National Golf Foundation comprise 57.0% of all golfers and contribute to 94.0% of annual golf spend, are more likely to become private club members. As a result, private golf clubs have an average golf member spend per year of $2,057 versus $634 for public clubs according to National Golf Foundation statistics.


Spend per Golfer

GRAPHIC

Source: National Golf Foundation

      We believe that the golf industry overall will benefit as baby boomers (individuals born between 1946 and 1964) enter the peak leisure phase of their lives. According to publications by the National Golf Foundation, the private golf club industry captures a more affluent segment of baby boomers than the industry as a whole. Members of the baby-boomer generation are currently in transition from their professional peak earning years and will soon begin retiring at an unprecedented rate with the first wave of baby boomers reaching the age of 65 in 2011. According to the U.S. Census Bureau, there will be a projected 18% increase in the U.S. population aged 55 to 64 from 2010 through 2020. Data from the Congressional Budget Office and Federal Reserve indicate that baby-boomer households own more than 50 percent of the value of all outstanding financial assets in the U.S. financial market. As a result, the aging of the baby-boomer generation also has potentially favorable implications for the golf industry as the greatest number of rounds played occurs in the 65 and over age category of golfers, based on data collected by the National Golf Foundation.

    •
    Relative Out-Performance During the Recession and Stable Long-Term Trends.  The golf sector has outperformed other travel and leisure sectors during the last economic downturn and trends remain positive. Specifically, golf rounds from peak-to-trough (2006 - 2010) saw a decline of 5.2% compared to U.S. hotel room occupancy declines of 9.1% (2006 - 2010) according to industry publications by the National Golf Foundation and Smith Travel Research. The National Golf Foundation reports that golf rounds in the United States grew from approximately 451 million in 1990 to a peak of 518 million in 2000 and since 2003, golf rounds have stabilized, averaging approximately 493 million per year.

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 Total US Golf Industry Rounds per Year (MMs)

GRAPHIC

Source: National Golf Foundation

Our Business Model

        Our extensive network of clubs allows us to provide numerous value-added services and amenities to our members that are not available from individual privately-owned clubs. For example, we offer our members, generally for incremental monthly dues, various reciprocity programs whereby members can use certain of the other clubs we own and other clubs with which we have usage arrangements. In addition, we have established arrangements with world-renowned restaurants, hotels, resorts, retailers and other alliances that provide other benefits, further enhancing the value proposition for our members.

        Our policy of not assessing our members for capital improvements together with our network of properties, facilities and products significantly differentiates us from the vast majority of member-owned golf country clubs and gives our members a high level of certainty over the potential expenditures they could otherwise encounter as a club member, which we believe makes our members more comfortable joining one of our clubs.

    Membership Initiation Payments and Dues

        The private club industry generally requires members to pay an upfront fee to join and then pay recurring dues on a periodic (generally monthly) basis. In non-member-owned clubs, these payments typically come in two forms: initiation fees and initiation deposits. Initiation deposits, which are typically limited to our more prestigious golf clubs, are generally refundable after a specified period of years. Initiation fees, which are typical in our business clubs and mid-market golf clubs, are generally nonrefundable. However, the memberships associated with these initiation payments may be transferable. Transferable membership types typically allow a resigning member to essentially sell his membership, through the club, to a new member in exchange for receiving a portion of the initiation payment paid by the new member, not to exceed the initiation payment originally paid by the resigning member. Membership initiation payments depend both on the type of club, its location and its competition, and can range from a few hundred dollars to tens of thousands of dollars. Membership dues payments are typically received on a monthly basis, which provides a relatively stable and recurring source of revenue for us. For the fiscal year ended December 28, 2010, approximately 47.4% of our revenues came in the form of membership dues and 1.5% of our revenues came in the form of the amortization of upfront membership initiation payments.

    Reciprocal Privileges

        We offer a network of products, services and amenities through membership upgrades that provide access to our extensive network of clubs and leverages our alliances with other clubs, facilities and

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properties and serves as a point of differentiation to our competitors. For example, for incremental monthly dues, our reciprocal access program allows our members to have access to clubs in certain geographical areas, which is arranged by our in-house travel concierge. These programs are not limited to clubs owned and operated by us, and we enter into usage arrangements with other clubs both domestically and internationally.

    Additional Products and Services

        We have also established arrangements with restaurants, such as Emeril Lagasse and The Capital Grille, resorts such as Barton Creek Resort & Spa and The Homestead, and hotels such as The Ritz-Carlton, Hyatt, and numerous other alliances that provide additional benefits to our members. We make reservations within our network of clubs and other properties convenient for members by providing an in-house travel concierge (ClubLine), and by offering access to an inventory of VIP tickets through our own web portal (TicketLine).

    Discretionary Spending

        Our clubs offer a lifestyle that is appealing to the entire family of our members, resulting in member loyalty and which translates into greater ability to capture discretionary leisure spending than traditional clubs. Certain of our clubs offer tennis facilities in which we may earn court fees, spas and food and beverage outlets where we earn ancillary revenues as well as extensive programming such as kids camps, swim teams, golf or tennis lessons, where members further utilize our facilities. We believe a greater product offering, when appropriate for the marketplace, enhances the members' ability to utilize the club and appeals to broader family members and therefore creates greater value to the membership.

    Economies of Scale

        Our size provides significant economies of scale across our portfolio. In March 2001, we participated in the formation of a purchasing cooperative of hospitality companies, which allows us to better control costs associated with operating our clubs. We are also able to provide centralized sales and marketing expertise, capital expenditure oversight, a national golf cart leasing program, and golf course maintenance oversight, including a national agronomist who assists in the maintenance of our golf courses and provides expertise in chemical usage and water management.

Our Business Segments

        Our operations are organized into two principal business segments: (1) golf and country clubs and (2) business, sports and alumni clubs.

    Golf and Country Club Facilities Segment

        Our portfolio of 98 golf and country club facilities is comprised of 77 private golf and country clubs and 14 semi-private golf clubs with a combined total of approximately 80,000 memberships as of December 28, 2010, and seven public golf facilities.

    •
    Our 77 private golf and country clubs provide one or more golf courses and a number of the following: driving ranges, practice facilities, dining rooms, lounge areas, meeting rooms, grills, ballrooms, fitness centers, tennis courts, swimming pools and pro shops. Our private country clubs include, but are not limited to, Firestone Country Club in Akron, Ohio, Mission Hills Country Club in Rancho Mirage, California, Indian Wells Country Clubs in Indian Wells, California and Gleneagles Country Club in Plano, Texas.

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    •
    Our 21 other golf clubs (semi-private and public) offer both private and public play, driving ranges and food and beverage concessions. Many of our semi-private clubs also provide some or all of the additional amenities provided by our private clubs. Our semi-private and public clubs include, but are not limited to, Nags Head Golf Links in North Carolina, Golden Bear Golf Club at Indigo Run in South Carolina and two "Bear's Best" public courses in Nevada and Georgia, which feature replicas of many of the most famous Jack Nicklaus-designed golf holes from clubs around the world.

        Operating revenues for our country club and golf facilities segment consist primarily of membership revenues (comprised primarily of membership dues and, to a lesser extent, initiation payments), golf revenues (comprised mainly of cart rental fees and greens fees for guests of members, public play and outings (e.g., tournaments and charity fundraisers)) and food and beverage sales (comprised of a la carte dining and private events). We have focused our operations in this segment on private and semi-private clubs because of our expertise in managing membership-based facilities, the relative competitive position of such clubs as compared to public courses and the general stability of recurring membership dues. For the fiscal year ended December 28, 2010, our country club and golf facilities segment generated consolidated operating revenues of $523.8 million, representing approximately 75.0% of our total consolidated operating revenues.

    Business, Sports and Alumni Clubs Segment

        Our portfolio of 55 business, sports and alumni clubs is comprised of 34 business clubs, 15 business and sports clubs and 6 alumni clubs, with a combined total of approximately 67,500 memberships as of December 28, 2010. Each of our business clubs includes dining rooms, bar areas, private meeting rooms, and media and telecommunications equipment providing a technologically-enabled work area. We have recently embarked on a renovation program for our business clubs to strategically design and meet the varying needs of four distinct member personas: the "Power Host," the "Active Connector," the "Office Away Member" and the "Comfort Seeker." The Power Host is primarily satisfied by our fine dining rooms and private event spaces; the Active Connector is primarily satisfied by our business networking and charitable programs; the Office Away Member is primarily satisfied by our business services, flexible work areas, and small conference rooms; and the Comfort Seeking Member is primarily satisfied by our anytime lounge, creative casual cuisine, and fun elements such as 103-inch plasma televisions installed in some of our media rooms. In addition, our 15 business and sports clubs combine the ambiance and amenities of our business clubs with the facilities of premier sports clubs, providing an array of facilities which may include racquetball, squash, tennis and basketball courts, jogging tracks, exercise areas, free-weights, weight machines, aerobic studios, or swimming pools. We have partnerships with six leading universities to offer alumni clubs in a variety of on-campus, in-stadium, or city center locations. Our business, sports and alumni clubs are located in 16 of the top 25 Metropolitan Statistical Areas, including, but not limited to, the City Club on Bunker Hill in Los Angeles, The Metropolitan Club in Chicago, the Columbia Tower Club in Seattle, the City Club of Washington DC, the Buckhead Club in Atlanta and the Boston College Club in Boston. Operating revenues for our business, sports and alumni clubs segment consist primarily of monthly membership dues and food and beverage sales. For the fiscal year ended December 28, 2010, our business, sports and alumni clubs segment generated consolidated operating revenues of $175.8 million, representing approximately 25.0% of our total consolidated operating revenues.

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Sales and Marketing

        We promote our clubs through extensive marketing and sales programs, which include direct marketing to targeted audiences, promotional programs, print media advertising in lifestyle and industry publications, and marketing initiatives directed at attracting underrepresented groups at our clubs such as executive women and young executives. Additionally, we market directly to many of our members and guests through our websites and internet presence, including using social media outlets and individual club newsletters, which provide detailed information regarding our clubs. We also publish our own award-winning quarterly lifestyle magazine, Private Clubs, which we use to showcase our facilities, our strategic products and services, marketing relationships and other content that is relevant to our members.

        We also host a number of nationally recognized golf tournaments affiliated with, among others, the PGA Tour, the LPGA Tour, the Champions Tour and the R&A Group, which increase our market exposure. Tournaments hosted by us during 2010 include the Bridgestone Invitational at Firestone Country Club, the Kraft Nabisco Championship at Mission Hills Country Club, the Triton Financial Classic at the Hills Country Club at Lakeway and the British Open qualifier at Gleneagles Country Club. Our clubs perennially appear on national and local "best of" lists for golf, tennis and dining. In 2010, Firestone Country Club ranked 11th on the Golf World Readers' Choice Awards—Top 50 Private Clubs, Diamante Golf Club ranked 38th on America's 50 Toughest Golf Courses, and Southern Trace Country Club, the Hills Country Club at Lakeway and Diamante Golf Club were each named in their respective states to the Golf Digest "Best by State" rankings.

Properties

        As of December 28, 2010, our portfolio consists of 153 clubs located in 25 states, the District of Columbia, and two foreign countries. We own 77 clubs in fee simple, lease 48 business, sports and alumni clubs on long-term space leases, hold the leasehold interest in 13 golf and country clubs, hold joint venture partnerships in 7 clubs, and hold management contracts for 8 clubs.

        The following tables illustrate our clubs by location, type of club, and size either in terms of golf holes or square footage, respectively, for golf and country clubs or business, sports and alumni clubs.

Golf and Country Clubs Segment by Region
  Type of Club   MSA / Market   State   Golf
Holes 		 

California Region

                    

Aliso Viejo Golf Club

   Private Country Club   Orange County   CA     18  

Braemar Country Club

   Private Country Club   Los Angeles   CA     36  

Canyon Crest Country Club

   Private Country Club   Riverside   CA     18  

Coto De Caza Golf & Racquet Club

   Private Country Club   Orange County   CA     36  

Crow Canyon Country Club

   Private Country Club   San Francisco   CA     18  

Desert Falls Country Club

   Private Country Club   Palm Springs   CA     18  

Morgan Run Club & Resort

   Private Country Club   San Diego   CA     27  

Porter Valley Country Club

   Private Country Club   Los Angeles   CA     18  

Shadowridge Country Club

   Private Country Club   San Diego   CA     18  

Spring Valley Lake Country Club

   Private Country Club   Victorville   CA     18  

Airways Golf Club

   Public Golf   Fresno   CA     18  

Empire Ranch Golf Club

   Public Golf   Sacramento   CA     18  

Indian Wells Country Club

   Private Country Club   Palm Springs   CA     36  

Mission Hills Country Club

   Private Country Club   Palm Springs   CA     54  

Teal Bend Golf Club

   Public Golf   Sacramento   CA     18  

Turkey Creek Golf Club

   Public Golf   Sacramento   CA     18  

Granite Bay Golf Club

   Private Country Club   Sacramento   CA     18  

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Golf and Country Clubs Segment by Region
  Type of Club   MSA / Market   State   Golf
Holes 		 

Texas Region

                    

April Sound Country Club

   Private Country Club   Houston   TX     27  

Bay Oaks Country Club

   Private Country Club   Houston   TX     18  

Brookhaven Country Club

   Private Country Club   Dallas   TX     54  

Canyon Creek Country Club

   Private Country Club   Dallas   TX     18  

The Club at Cimarron

   Private Country Club   Mission   TX     18  

Fair Oaks Ranch Golf & Country Club

   Private Country Club   San Antonio   TX     36  

The Club at Falcon Point

   Private Country Club   Houston   TX     18  

Gleneagles Country Club

   Private Country Club   Dallas   TX     36  

Hackberry Creek Country Club

   Private Country Club   Dallas   TX     18  

Hearthstone Country Club

   Private Country Club   Houston   TX     27  

The Clubs of Kingwood at Deerwood

   Private Country Club   Houston   TX     18  

The Clubs of Kingwood at Kingwood

   Private Country Club   Houston   TX     72  

Las Colinas Country Club

   Private Country Club   Dallas   TX     18  

Lost Creek Country Club

   Private Country Club   Austin   TX     18  

Oakmont Country Club

   Private Country Club   Dallas   TX     18  

Shady Valley Golf Club

   Private Country Club   Dallas   TX     18  

Stonebriar Country Club

   Private Country Club   Dallas   TX     36  

Stonebridge Country Club

   Private Country Club   Dallas   TX     18  

The Ranch Country Club at Stonebridge

   Private Country Club   Dallas   TX     27  

Lakeway Country Club

   Semi-Private Golf Club   Austin   TX     36  

Flintrock Golf Club at Lakeway

   Private Country Club   Austin   TX     18  

The Hills Country Club at Lakeway

   Private Country Club   Austin   TX     18  

Timarron Country Club

   Private Country Club   Dallas   TX     18  

Trophy Club Country Club

   Private Country Club   Dallas   TX     36  

Walnut Creek Country Club

   Private Country Club   Dallas   TX     36  

Wildflower Country Club

   Private Country Club   Waco   TX     18  

Willow Creek Golf Club

   Private Country Club   Houston   TX     18  

West Region

                    

Anthem Golf & Country Club

   Private Country Club   Phoenix   AZ     18  

Ironwood Club at Anthem

   Private Country Club   Phoenix   AZ     18  

Gainey Ranch Golf Club

   Private Country Club   Phoenix   AZ     27  

Seville Golf & Country Club

   Private Country Club   Phoenix   AZ     18  

Aspen Glen Club

   Private Country Club   Rocky Mountain   CO     18  

Canyon Gate Country Club

   Private Country Club   Las Vegas   NV     18  

Bear's Best Las Vegas

   Public Golf   Las Vegas   NV     18  

Midwest Region

                    

Knollwood Country Club

   Private Country Club   South Bend   IN     36  

Nicklaus Golf Club at LionsGate

   Private Country Club   Kansas City   KS     18  

Oak Pointe Country Club

   Private Country Club   Detroit   MI     36  

Firestone Country Club

   Private Country Club   Akron   OH     63  

Quail Hollow Country Club

   Private Country Club   Cleveland   OH     36  

Silver Lake Country Club

   Private Country Club   Akron   OH     18  

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Golf and Country Clubs Segment by Region
  Type of Club   MSA / Market   State   Golf
Holes 		 

Mid-Atlantic Region

                    

Devils Ridge Golf Club

   Private Country Club   Raleigh/Durham   NC     18  

Lochmere Golf Club

   Semi-Private Golf Club   Raleigh/Durham   NC     18  

Nags Head Golf Club

   Semi-Private Golf Club   Outer Banks   NC     18  

Neuse Golf Club

   Semi-Private Golf Club   Raleigh/Durham   NC     18  

The Currituck Golf Club

   Semi-Private Golf Club   Outer Banks   NC     18  

Bluegrass Yacht & Country Club

   Private Country Club   Nashville   TN     18  

Greenbrier Country Club

   Private Country Club   Norfolk   VA     18  

Piedmont Club

   Private Country Club   Washington, D.C.   VA     18  

River Creek Club

   Private Country Club   Washington, D.C.   VA     18  

Stonehenge Golf & Country Club

   Private Country Club   Richmond   VA     18  

The Club at Viniterra

   Private Country Club   Richmond   VA     18  

Northeast Region

                    

Ipswich Country Club

   Private Country Club   Boston   MA     18  

Diamond Run Golf Club

   Private Country Club   Pittsburgh   PA     18  

Treesdale Golf & Country Club

   Private Country Club   Pittsburgh   PA     27  

Southeast Region

                    

Diamante Golf Club

   Private Country Club   Hot Springs Village   AR     18  

Countryside Country Club

   Private Country Club   Tampa   FL     27  

Debary Golf & Country Club

   Semi-Private Golf Club   Orlando   FL     18  

Deercreek Country Club

   Private Country Club   Jacksonville   FL     18  

East Lake Woodlands Country Club

   Private Country Club   Clearwater   FL     36  

Haile Plantation Golf & Country Club

   Private Country Club   Gainesville   FL     18  

Hunter's Green Country Club

   Private Country Club   Tampa   FL     18  

Monarch Country Club

   Private Country Club   Palm Beaches   FL     18  

Queens Harbour Yacht & Country Club

   Semi-Private Golf Club   Jacksonville   FL     18  

Tampa Palms Golf & Country Club

   Private Country Club   Tampa   FL     18  

Eagle Ridge Country Club

   Semi-Private Golf Club   Gainesville   FL     36  

The Preserve Golf Club

   Public Golf   Gainesville   FL     18  

Stone Creek Golf Club

   Semi-Private Golf Club   Gainesville   FL     18  

Country Club of Gwinnett

   Semi-Private Golf Club   Atlanta   GA     18  

Country Club of the South

   Private Country Club   Atlanta   GA     18  

Eagles Landing Country Club

   Private Country Club   Atlanta   GA     27  

Northwood Country Club

   Private Country Club   Atlanta   GA     18  

Bear's Best Atlanta

   Public Golf   Atlanta   GA     18  

Laurel Springs Golf Club

   Private Country Club   Atlanta   GA     18  

Southern Trace Country Club

   Private Country Club   Shreveport   LA     18  

Country Club of Hilton Head

   Private Country Club   Hilton Head   SC     18  

Golden Bear Golf Club at Indigo Run

   Semi-Private Golf Club   Hilton Head   SC     18  

The Golf Club at Indigo Run

   Private Country Club   Hilton Head   SC     18  

Woodside Plantation Country Club

   Private Country Club   Augusta, GA   SC     45  

International Region

                    

Cozumel Country Club

   Semi-Private Golf Club   International   Mexico     18  

Vista Vallarta

   Semi-Private Golf Club   International   Mexico     36  

Marina Vallarta Club de Golf

   Semi-Private Golf Club   International   Mexico     18  
                   

Total Golf & Country Clubs

                 2,304  
                   

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Business, sports and alumni Clubs Segment by Region
  Business Type   MSA / Market   State   Square
Footage 		 

California Region

                    

City Club on Bunker Hill

   Business Club   Los Angeles   CA     26,429  

Center Club

   Business Club   Orange County   CA     22,514  

Silicon Valley Capital Club

   Business/Sports Club   San Jose   CA     14,279  

University Club atop Symphony Towers

   Business Club   San Diego   CA     16,725  

Texas Region

                    

Greenspoint Club

   Business/Sports Club   Houston   TX     38,950  

Houston City Club

   Business/Sports Club   Houston   TX     132,445  

The Downtown Club at Met

   Business/Sports Club   Houston   TX     105,450  

The Downtown Club at Houston Center

   Business/Sports Club   Houston   TX     55,000  

The Downtown Club at Plaza

   Business Club   Houston   TX     13,927  

La Cima Club

   Business Club   Dallas   TX     14,723  

Plaza Club

   Business Club   San Antonio   TX     17,469  

Texas Tech University Club

   Alumni Club   Lubbock   TX     20,000  

Tower Club

   Business Club   Dallas   TX     28,512  

The University of Texas Club

   Alumni Club   Austin   TX     33,872  

Westlake Club

   Business/Sports Club   Houston   TX     55,180  

West Region

                    

Columbia Tower Club

   Business Club   Seattle   WA     24,882  

Midwest Region

                    

Metropolitan Club

   Business/Sports Club   Chicago   IL     59,420  

Mid-America Club

   Business Club   Chicago   IL     42,143  

Skyline Club

   Business Club   Chicago   IN     16,382  

Renaissance Club (ceased operations December 31, 2010)

   Business Club   Detroit   MI     20,554  

Skyline Club

   Business Club   Detroit   MI     13,000  

Shoreby Club

   Business/Sports Club   Cleveland   OH     20,700  

Dayton Racquet Club

   Business/Sports Club   Dayton   OH     28,291  

The Club at Key Center

   Business/Sports Club   Cleveland   OH     33,902  

Le Club

   Sports Club   Milwaukee   WI     127,000  

Mid-Atlantic Region

                    

City Club of Washington at Columbia Square

   Business Club   Washington, D.C.   DC     15,640  

City Club of Washington at Franklin Square

   Business Club   Washington, D.C.   DC     12,320  

Carolina Club

   Alumni Club   Chapel Hill   NC     15,000  

Capital City Club

   Business Club   Raleigh/Durham   NC     17,969  

Cardinal Club

   Business Club   Raleigh/Durham   NC     21,812  

Piedmont Club

   Business Club   Winston-Salem   NC     13,236  

Club LeConte

   Business Club   Knoxville   TN     16,557  

Crescent Club

   Business Club   Memphis   TN     14,329  

Tower Club Tysons Corner

   Business Club   Vienna   VA     22,298  

Town Point Club

   Business Club   Norfolk   VA     18,253  

Northeast Region

                    

University of Massachusetts Club

   Alumni Club   Boston   MA     18,500  

Boston College Club

   Alumni Club   Boston   MA     16,929  

The Athletic & Swim Club at Equitable Center

   Sports Club   New York City   NY     25,000  

Pyramid Club

   Business Club   Philadelphia   PA     20,139  

Rivers Club

   Business/Sports Club   Pittsburgh   PA     69,167  

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Business, sports and alumni Clubs Segment by Region
  Business Type   MSA / Market   State   Square
Footage 		 

Southeast Region

                    

Capital City Club

   Business Club   Montgomery   AL     33,985  

The Summit Club

   Business Club   Birmingham   AL     19,382  

University Center Club at Florida State University

   Alumni Club   Tallahassee   FL     64,000  

Centre Club

   Business Club   Tampa   FL     14,139  

Citrus Club

   Business/Sports Club   Orlando   FL     25,899  

Tower Club

   Business Club   Ft. Lauderdale   FL     10,184  

University Club

   Business/Sports Club   Jacksonville   FL     29,638  

Buckhead Club

   Business Club   Atlanta   GA     18,000  

First City Club (ceased operations February 28, 2011)

   Business Club   Savannah   GA     10,819  

The Commerce Club f/k/a 191 Club

   Business Club   Atlanta   GA     15,550  

University Club of Jackson

   Business Club   Jackson   MS     14,619  

Capital City Club

   Business Club   Columbia   SC     20,339  

Commerce Club

   Business Club   Greenville   SC     15,550  

Harbour Club

   Business Club   Charleston   SC     17,978  

International Region

                    

Capital Club

   Business Club   International   China     60,000  
                   

Total Business, Sports & Alumni Clubs

                 1,668,980  
                   

Competition

        We believe that we are one of only four companies that each own or operate more than 25 private clubs in the United States. According to the National Golf Foundation, the U.S. Air Force Services Agency reports 37 private clubs, Troon Golf reports 31 private clubs and American Golf Corporation reports 27 private clubs. Therefore, we believe the majority of our competition is regionally or locally-based. For golf and country clubs, our competition includes other private clubs and public golf courses. According to the National Golf Foundation, as of December 31, 2009 there are 15,979 golf courses in the United States, including 4,342 private golf courses and 11,637 public golf courses. The level of competition for any one of our clubs depends on its location and its proximity to other golf facilities relative to the locations of our members as well as the relative quality of our product offering. As our facilities are generally located within a residential community, the adjacent homeowners provide a natural membership base for many of our clubs. In several of our markets, such as California, Florida and Texas, our ownership of multiple facilities allows us to offer access to multiple clubs, providing an advantage against single clubs we may compete against in such regions. While other operators have attempted to create their own access and benefit programs, given the number of our owned and operated clubs, we believe it will be difficult to create a competing product that has the scale or geographic diversity of our programs and therefore differentiates us from our competitors.

        Competition for our business, sports and alumni clubs is very dependent on the individual market, and the needs of the individual member. For members looking for a private dining experience, nearby restaurants are our primary competition. For members looking for places to conduct business, our competition includes other facilities that provide meeting space such as hotels and convention centers as well as places such as fast casual restaurants and coffee bars, where people can conveniently meet and conduct informal meetings and access the internet. For people looking for a place to hold a private party such as a wedding, our competition includes other catering facilities such as hotels.

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Seasonality

        Golf club operations are seasonal in nature, with peak golf season beginning in mid-May and running through mid-September in most regions. While nearly all of our golf and country clubs experience at least some seasonality, due to the recurring nature of our year round dues income, seasonality has a muted impact on our overall performance as compared to daily fee and public golf facilities. We consider this to be one of the primary advantages of private club ownership as daily fee and public golf facilities do not have similar sources of year-round recurring revenue. Furthermore, the seasonality of revenues for many of our golf and country clubs is partially mitigated by their locations in regions with traditionally warmer climates such as California, Texas and Florida. In addition, our business, sports and alumni clubs are less seasonal in nature. Many of our golf and country clubs also offer other amenities such as dining, tennis, swimming and fitness facilities, which provide revenue streams that can be less affected by seasonality than our golf revenues.

Regulation

    Environmental, Health and Safety

        Our properties and operations are subject to a number of environmental laws. As a result, we may be required to incur costs to comply with the requirements of these laws, such as those relating to water resources, discharges to air, water and land; the handling and disposal of solid and hazardous waste; and the cleanup of properties affected by regulated materials. Under these and other environmental requirements we may be required to investigate and clean up hazardous or toxic substances or chemical releases from current or formerly owned or operated facilities. Environmental laws typically impose cleanup responsibility and liability without regard to whether the relevant entity knew of or caused the presence of the contaminants. We use certain substances and generate certain wastes that may be deemed hazardous or toxic under such laws, and we from time to time have incurred, and in the future may incur, costs related to cleaning up contamination resulting from historic uses of certain of our current or former properties or our treatment, storage or disposal of wastes at facilities owned by others. Our club facilities are also subject to risks associated with mold, asbestos and other indoor building contaminants. The costs of investigation, remediation or removal of regulated materials may be substantial, and the presence of those substances, or the failure to remediate a property properly, may impair our ability to use, transfer or obtain financing for our property. We may be required to incur costs to remediate potential environmental hazards, mitigate environmental risks in the future, or comply with other environmental requirements.

        In addition, in order to improve, upgrade or expand some of our golf clubs we may be subject to environmental review under the National Environmental Policy Act and, for projects in California, the California Environmental Quality Act. Both acts require that a specified government agency study any proposal for potential environmental impacts and include in its analysis various alternatives. Our improvement proposals may not be approved or may be approved with modifications that substantially increase the cost or decrease the desirability of implementing the project.

        We are also subject to regulation by the United States Occupational Safety and Health Administration and similar health and safety laws in other jurisdictions. These regulations impact a number of aspects of operations, including golf course maintenance and food handling and preparation.

    Zoning and Land Use

        The ownership and management of our properties and facilities, as well as our re-development and expansion of clubs, subjects us to federal, state and local laws regulating zoning, land development, land use, building design and construction, and other real estate-related laws and regulations.

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    Access

        Our facilities and operations are subject to the Americans with Disabilities Act of 1990 (the "ADA"). The ADA has separate compliance requirements for "public accommodations" and "commercial facilities" but generally requires that public facilities such as clubhouses and recreation areas be made accessible to people with disabilities. While we have in the past conducted limited reviews of our properties for compliance with ADA requirements and believe our properties and facilities to be substantially in compliance with applicable laws and regulations governing accessibility, we have not conducted an exhaustive audit or investigation of all of our properties to determine our compliance with the ADA. Noncompliance could result in imposition of fines or an award of damages to private litigants. Further, federal legislation or regulations may amend the ADA to impose more stringent requirements with which we would have to comply.

    Other

        We are also subject to various local, state, and federal laws, regulations and administrative practices affecting our business. We must comply with provisions regulating health and safety standards, equal employment, minimum wages, and licensing requirements and regulations for the sale of food and alcoholic beverages.

Employees

        As of December 28, 2010, we had approximately 12,400 employee partners, of which 300 are part of our corporate and regional staff, 8,700 are located at our golf and country clubs, and 3,400 are located at our business, sports and alumni clubs. Other than a small group of golf course maintenance staff at one of our clubs, all of our employees are non-union. We believe we have a good working relationship with our employees and have not experienced an interruption of business as a result of labor disputes.

Insurance

        We believe that our properties are covered by adequate fire, flood and property insurance, as well as commercial liability insurance with what we believe are commercially reasonable deductibles and limits for our industry. Changes in the insurance market over the past few years have increased the risk that affordable insurance may not be available to us in the future.

        While our management believes that our insurance coverage is adequate, if we were held liable for amounts and claims exceeding the limits of our insurance coverage or outside the scope of our insurance coverage, our business, results of operations and financial condition could be materially and adversely affected.

Intellectual Property

        We have registered, applied for the registration of or claim ownership of a variety of trade names, service marks, copyrights and trademarks for use in our business, including, but not limited to, Associate Club; Associate Clubs; Building Relationships and Enriching Lives; Call the Clubline; ClubCorp; ClubCorp Charity Classic; ClubCorp Advantage; ClubCorp Gold Advantage; ClubCorp Resorts; Club Corporation of America; ClubCorp Ultimate Advantage; Clubline; Club Resorts; Club Without Walls; Fastee Course; Private Clubs; The Society; The World Leader in Private Clubs; and Warm Welcomes, Magic Moments and Fond Farewells. While there can be no assurance that we can obtain registration for the marks, we are not currently aware of any facts that would negatively impact our continuing use of any of the above trade names, service marks or trademarks. We consider our intellectual property rights to be important to our business and actively defend and enforce them.

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Legal Proceedings

        From time to time, we are involved in litigation that we believe is of the type common to companies engaged in our line of business, including commercial disputes, disputes with members regarding their membership agreements, employment issues and claims relating to personal injury and property damage. As of the date of this filing, we are not involved in any pending legal proceedings that we believe would likely have a material adverse effect on our financial condition, results of operations or cash flows.

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 MANAGEMENT

Executive Officers and Directors

        The following table sets forth information about our executive officers and directors as of March 28, 2011:

Name
  Age   Position

Eric L. Affeldt

     53   President, Chief Executive Officer and Director

Curtis D. McClellan

     44   Chief Financial Officer and Treasurer

Mark A. Burnett

     46   Executive Vice President of Golf & Country Clubs

David B. Woodyard

     53   Executive Vice President of Business & Sports Clubs

James K. Walters

     48   Executive Vice President of Sales & Revenue

Blake S. Walker

     46   Chief Acquisitions and Development Officer

Daniel T. Tilley

     48   Chief Information Officer and Executive Vice President

Ingrid J. Keiser

     50   General Counsel, Secretary and Executive Vice President of People Strategy

Martin J. Newburger

     38   Director

Eric C. Resnick

     38   Director

Michael S. Shannon

     52   Chairman of the Board

Steven S. Siegel

     48   Director

        Eric L. Affeldt has served as our Chief Executive Officer since December 2006 and as a director since 2006. Prior to joining us, he served as a principal of KSL Capital Partners, LLC. Mr. Affeldt also previously served as president and chief executive officer of KSL Fairways Golf Corporation from January 1995 to June 1998, vice president and general manager of Doral Golf Resort and Spa in Miami and the combined PGA West and La Quinta Resort and Club in California from June 1998 to June 2000 and was a founding partner of KSL Recreation Corporation. In addition, Mr. Affeldt was president of General Aviation Holdings, Inc. from January 2000 to March 2005. He is currently a national vice president of the Muscular Dystrophy Association, a member of the World Presidents' Organization, and also serves on the board of directors of Cedar Fair LP. He holds a B.A. in political science and religion from Claremont McKenna College. As a member of the Board of Directors, Mr. Affeldt contributes his knowledge of the resort and recreation industry, as well substantial experience developing corporate strategy and assessing emerging industry trends and business operations. Mr. Affeldt also brings his insight into the proper functioning and role of corporate boards of directors, gained through his years of service on various boards of directors.

        Curtis D. McClellan has served as our Chief Financial Officer and Treasurer since November 2008. Prior to that he served as vice president of finance and controller for FedEx Office and Print Services, Inc. from March 2003 to November 2008. Mr. McClellan has worked in a number of retail-oriented, multi-store companies, including Digital Generation Systems, Inc. from January 2002 to March 2003, GroceryWorks.com, LLC from May 2000 to December 2001, and Randall's Food Markets, Inc. from March 1991 to May 2000. He currently serves on the board of managers for Avendra, LLC. Mr. McClellan holds a B.S in accounting from Abilene Christian University and is a licensed CPA.

        Mark A. Burnett has served as our Executive Vice President of Golf & Country Clubs since December 2006. Prior to that he served as chief operating officer for American Golf Corporation from January 2000 to December 2004. Mr. Burnett previously served as president and chief executive officer from June 1998 to December 1999 and chief operating officer from September 1996 to June 1998 for KSL Fairways Golf Corporation, and as vice president of operations for Golf Enterprises, Inc. from January 1993 to August 1996. Mr. Burnett holds a B.S. in business management from Indiana University.

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        David B. Woodyard has served as our Executive Vice President of Business and Sports Clubs since February 2011 having previously served in the same role from May 2003 until August 2009 when he became the executive vice president of new business development. Mr. Woodyard joined us in 1983 and as served as a general manager of various business and sports clubs, a regional vice president, and as a senior vice president. Mr. Woodyard attended Ohio State University.

        James K. Walters has served as our Executive Vice President Sales & Revenue since January 2010 and previously as executive vice president of sales and marketing from July 2008 to January 2010. Prior to joining us, Mr. Walters served as group president of hospitality and real estate for Kohler Company from May 2006 to July 2008. Mr. Walters also served as executive vice president of operations from August 2005 to January 2006, senior vice president of operations from March 2004 to August 2005, and senior vice president of sales from August 2000 to February 2004 for Wyndham International. Mr. Walters holds a B.S. in hotel administration from the University of New Hampshire, Whittemore School of Business.

        Blake S. Walker has served as our Chief Acquisitions and Development Officer since January 2010. He previously served as a co-founder and partner of Pegasus Golf Partners, LLC from December 2002 to December 2009. Prior to that, he served as our vice president of new business from May 1999 to May 2000 and as our senior vice president of new business from June 2000 to November 2002. Mr. Walker's past experience also includes serving as director of acquisitions at KSL Fairways Golf Corporation from October 1993 to May 1999. Mr. Walker holds a B.A. from Southern Methodist University and currently serves as an advisory board member at the Southern Methodist University Cox School of Business.

        Daniel T. Tilley has served as our Chief Information Officer and Executive Vice President since May 2007. Prior to joining us, he served at BrightStar Golf Group, LLC, where he was a founding member of the management team and his roles included both chief information officer and chief financial officer from December 2004 to May 2007, as well as serving as a consultant from November 2003 to December 2004. Mr. Tilley's past experience also includes serving as vice president of finance and chief information officer at Spectrum Clubs, Inc. from September 1999 to January 2003. He also served as chief information officer with both Cobblestone Golf Group, Inc. from April 1998 to June 1999 and KSL Fairways Golf Corporation from July 1993 to April 1998. Mr. Tilley holds a B.S. in computer science and mathematics from the University of Pittsburgh.

        Ingrid J. Keiser has served as our General Counsel, Secretary, and Executive Vice President of People Strategy since July 2008 and previously as chief legal officer from July 2007 to July 2008. Prior to that, Ms. Keiser served as an attorney at American Airlines from August 2004 to July 2007. She previously served as assistant general counsel and assistant secretary for Vail Resorts, Inc. from January 1997 to August 2004, and as senior counsel and secretary for Ralston Resorts, Inc. (formerly known as Keystone Resorts Management, Inc.) from May 1992 to January 1997 and as associate counsel from May 1989 to May 1992. She holds a J.D. from the University of Wisconsin Law School, and a B.A. in international relations from University of California at Davis.

        Martin J. Newburger has served as a director since 2006. He is currently a principal at KSL Capital Partners, LLC. Prior to joining KSL, Mr. Newburger was a director at Citigroup, focusing on lodging and leisure investment banking clients, from 2005 to 2006. He was a director at Deutsche Bank, with a similar client focus, from 1998 to 2005. He also currently serves on the board of directors of Western Athletic Clubs, LLC. He holds a B.A. from the University of Pennsylvania. As a member of the Board of Directors, Mr. Newburger contributes his financial expertise gained from advising clients on various capital markets transactions. Mr. Newburger also brings his insight into the proper functioning of corporate boards of directors gained through his years with Western Athletic Clubs as well as his time advising corporate clients on mergers and acquisitions as an investment banker.

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        Eric C. Resnick has served as a director since 2006. He became a managing director of KSL Capital Partners, LLC. upon its founding in 2005. Prior to that he served as founder and chief financial officer of KSL Resorts from 2004 to 2005. Resnick also previously served as chief financial officer of KSL Recreation Corporation from 2001 to 2004. His past career experience also includes serving at Vail Resorts, Inc. from 1996 to 2001, where his roles included vice president, strategic planning and investor relations and corporate treasurer, as well as serving as a consultant with McKinsey and Company. He also currently serves on the board of directors of Western Athletic Clubs, LLC, Orion Expedition Cruises and KSL Resorts. He holds a B.A. in mathematics and economics from Cornell University. As a member of the Board of Directors, Mr. Resnick contributes his financial expertise and draws on his years of experience in the resort and recreation industry. Mr. Resnick also brings his insight into the proper functioning and role of corporate boards of directors, gained through his years of service on various boards of directors.

        Michael S. Shannon has served as a director since 2006. He has served as a managing director of KSL Capital Partners, LLC since its founding in 2005. He previously served as co-founder and chief executive officer of KSL Resorts from 2004 to 2005, and served as founder, president and chief executive officer of KSL Recreation Corporation from 1992 to 2004. Prior to establishing KSL Recreation, he served as president and chief executive officer of Vail Associates, Inc. from 1986 to 1992. He also currently serves on the board of directors of Western Athletic Clubs, LLC, Orion Expedition Cruises, KSL Resorts, Safeway, Inc., and ING Direct USA. He holds a Bachelor of Business Administration from the University of Wisconsin and a Master of Management in accounting and finance from Northwestern University's Kellogg School of Management. As a member of the Board of Directors, Mr. Shannon contributes his knowledge of the resort and recreation industry, as well substantial experience developing corporate strategy and assessing emerging industry trends and business operations. Mr. Shannon also brings his insight into the proper functioning and role of corporate boards of directors, gained through his years of service on various boards of directors.

        Steven S. Siegel has served as a director since 2006. He has served as a partner at KSL Capital Partners, LLC since 2005. Prior to that, he was a partner of Brownstein Hyatt & Farber, P.C. from 1995 to 2005, where he served as chair of the Corporate and Securities Department and as a member of the executive committee. From 1990 through 1995, he was with Kirkland & Ellis LLP, becoming a partner in 1993. He previously served as an associate with Cravath Swaine & Moore from 1987 to 1990. In addition, he serves on the board of directors of Orion Expedition Cruises. He holds a J.D. from the University of Chicago and a B.A. in Economics from the Wharton School of the University of Pennsylvania. As a member of the Board of Directors, Mr. Siegel contributes his legal expertise gained in his 18 years advising private equity and corporate clients on securities transactions and mergers and acquisitions. Mr. Siegel also brings his knowledge of travel and leisure companies from his years as a partner with KSL Capital Partners, LLC.

        Our executive officers are appointed by our board of directors and serve until their successors have been duly elected and qualified. There are no family relationships among any of our directors or executive officers.

Board of Directors

        Our board of directors currently consists of five members. Our bylaws permit our board of directors to establish by resolution the authorized number of directors, and five directors are currently authorized.

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    Committees of the Board of Directors

        Our board of directors has established an audit committee. Our audit committee is comprised of Messrs. Newburger, Siegel and Shannon, each of whom is a non-employee member of our board of directors. Mr. Shannon is the chairperson of our audit committee.

    Compensation Committee Interlocks and Insider Participation

        Our board of directors does not have a compensation committee. The board of directors has performed the functions of a typical compensation committee with input from our President and Chief Executive Officer, Mr. Affeldt, and our General Counsel, Secretary and Executive Vice President of People Strategy, Ms. Keiser. None of our executive officers has served as a member of a compensation committee (or other committee serving an equivalent function) of any other entity whose executive officers served as a director of our company.

    Director Compensation

        None of our directors, including our employee directors, received any compensation from us for service on the board of directors.

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COMPENSATION DISCUSSION AND ANALYSIS

Named Executive Officers

        For the fiscal year ended December 28, 2010, the following individuals were our Named Executive Officers, or NEOs: (i) our Chief Executive Officer, (ii) our Chief Financial Officer, (iii) the three other most highly compensated executive officers who were serving as executive officers on December 28, 2010, and (iv) Mr. Dwayne Sigler, who would have been one of our three most highly compensated executive officers but for the fact that he was not serving as one of our executive officers on December 28, 2010, as he terminated employment effective as of December 21, 2010.

    •
    Eric L. Affeldt, Chief Executive Officer and President

    •
    Curtis D. McClellan, Chief Financial Officer and Treasurer

    •
    Dolf A. Berle, Executive Vice President, Hospitality (terminated employment on February 4, 2011)

    •
    Mark A. Burnett, Executive Vice President of Golf & Country Clubs

    •
    Blake S. Walker, Chief Acquisitions and Development Officer

    •
    Dwayne R. Sigler, former Chief Marketing Officer

Overview of Compensation Policies and Objectives

        As a privately-held company, we have not had a formal compensation committee and, instead, have been operating under the direction of our Board. The Board has performed the functions of a typical compensation committee, with input from our President and Chief Executive Officer (hereafter, "Chief Executive Officer"), Mr. Affeldt, and our General Counsel, Secretary and Executive Vice President of People Strategy, Ms. Keiser (hereafter, "EVP of People Strategy"). The Board has historically made and will continue to make compensation decisions in relation to the compensation of our NEOs, following consideration of recommendations from Mr. Affeldt and Ms. Keiser.

        General compensation arrangements are guided by the following principles and business objectives:

    •
    Align the interests of our executive officers with our interests by tying both annual and long-term incentive compensation to financial and operations performance and, ultimately, to the creation of enterprise value.

    •
    Attract and retain high caliber executives and key personnel by offering total compensation that is competitive with that offered by similarly situated companies and rewards personal performance.

    •
    Support business growth, financial results and the expansion of our network of clubs and facilities.

        Historically, we have generally not used, and have not had the need to use, many of the more formal compensation practices and policies employed by publicly traded companies subject to the executive compensation disclosure rules of the Securities and Exchange Commission and Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code").

Compensation Decision-Making

        We have relied, and will continue to rely, on our judgment in making compensation decisions after reviewing our performance, including our short- and long-term strategies, current economic and market conditions, and carefully evaluating an executive's performance during the year against established goals, leadership qualities, operational performance, business responsibilities, the executive's career with

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us, current compensation arrangements and long-term potential to enhance enterprise value. Our main objective in establishing compensation arrangements has been and will be to set criteria that are consistent with our business strategies. Generally, in evaluating performance, we have and will continue to review the following criteria:

    •
    strategic goals and objectives, such as completing the ClubCorp Formation;

    •
    individual management objectives that relate to our strategies;

    •
    achievement of specific operational goals of the executive officers, including the acquisition of strategic properties; and

    •
    our overall financial performance.

        Our executive compensation programs and policies have and will continue to depend on the position and responsibility of each executive officer and will remain consistent with our objectives. However, we do not specifically weigh these goals and objectives in our assessment of executive compensation arrangements, and we may not rely on these goals exclusively in making compensation decisions.

        Historically, we have offered a mix of guaranteed and performance-based compensation to our Named Executive Officers, and will in the future strive to achieve an appropriate mix between these two types of compensation, as well as an appropriate balance between cash and equity-based compensation. We did not and do not currently have formal policies relating to the allocation of total compensation among the various elements of compensation which we provide. Our current compensation structure is designed to be competitive with companies with whom we compete for executive talent and to be fair and equitable to us, our executives and our equity holders. We believe that our current compensation package matches the expectations of our executives, helps reward them for performance in the short-term and induces them to contribute to the creation of enterprise value over the long-term.

Role of our Chief Executive Officer in Compensation Decisions

        All compensation decisions for our Named Executive Officers have been determined by our Board, with input from our Chief Executive Officer and our EVP of People Strategy. In this regard, our Chief Executive Officer will continue to consult with senior executives in all areas of our organization, review the performance of our executive officers and provide annual recommendations for individual management objectives and compensation levels for our NEOs to the Board. Our Chief Executive Officer's compensation package is reviewed and approved by the Board after receiving input from him on his own compensation.

Compensation Strategies and Use of Peer Groups

        We do not utilize consultants or specific peer groups in developing the compensation packages for our executive officers. Instead, executive compensation is determined based upon reasonable judgment of our Board, following input from our Chief Executive Officer and our EVP of People Strategy, as well as the experience of the Board members with compensation structures and programs in other companies with which they have been associated or on whose boards of directors they have served. Going forward, we may establish a compensation committee that will have the discretion to utilize consultants and/or benchmarking and peer group analyses in determining and developing compensation packages for our executive officers; however, we do not currently have plans to establish such a committee.

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Elements of Our Executive Compensation Program

        Historically, and for the 2010 fiscal year, our executive compensation program consisted of the following elements:

    (1)
    base salary;

    (2)
    annual discretionary cash bonuses;

    (3)
    equity-based awards;

    (4)
    severance benefits and change of control protections; and

    (5)
    perquisites and fringe benefits, including relocation benefits and life insurance benefits.

Base Salary

        The annual base salaries of our Named Executive Officers are set with the objective of attracting and retaining highly-qualified individuals for the relevant positions and rewarding individual performance. When negotiating salary levels in connection with hiring a Named Executive Officer, and also when subsequently adjusting individual executive salary levels, we consider salary ranges for comparable positions at companies in our industry, the executive officer's responsibilities, experience, potential, and individual performance and contribution to our business; however, none of these factors are subject to any specific performance targets, nor given a specific weighting in the compensation decision-making process. We also consider other factors such as the unique skills of our NEOs, demand in the labor market and succession planning. We do not engage consultants to conduct any salary surveys or undertake any formal peer group analysis for purposes of determining the compensation of our Named Executive Officers.

        For the year ended December 28, 2010, the annual base salaries payable to our NEOs were as follows:

Eric L. Affeldt

   $ 475,000  

Curtis D. McClellan

   $ 280,000  

Dolf A. Berle

   $ 300,000  

Mark A. Burnett

   $ 325,000  

Blake S. Walker

   $ 300,000  

Dwayne R. Sigler

   $ 275,000  

        Mr. Burnett was the only NEO who had received a salary increase, from $300,000 to $325,000 per year, during the 2010 fiscal year based on a consideration of the general compensation levels for similar positions within our industry. Our Chief Executive Officer's 2010 salary of $475,000 per year reflected a five percent pay reduction which had been implemented during the 2009 fiscal year in response to the difficult economic conditions experienced in our industry, as well as in the economy overall.

        Based on a review of our NEOs' base salaries for 2011, we decided to increase the annual base salary for Mr. McClellan from $280,000 to $310,000, and for Mr. Burnett from $325,000 to $350,000, based on the level of their responsibilities with us and consideration of the general compensation levels for similar positions within our industry. Other than in respect of Messrs. McClellan and Burnett, no other salary increases for any of our NEOs were made in 2011, except that Mr. Affeldt's five percent salary reduction was eliminated effective December 29, 2010.

Annual Cash Bonuses

        Each of our NEOs is eligible to earn an annual cash bonus up to an amount equal to a specified percentage of such executive officer's salary (see "—Executive Employment Agreements," below). Our overall financial performance generally determines what percentage, if any, of the annual target bonus

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will be paid out. EBITDA has historically been used as our primary financial performance measure, along with a discretionary component that rewards the attainment of certain operational or individual performance goals. However, over the last two fiscal years, bonuses have been awarded, if at all, at the discretion of the Board, without regard to any pre-determined corporate or personal performance goals. Since we did not establish a formal bonus program for the 2010 fiscal year, all bonuses earned by our Named Executive Officers, as set forth in the Summary Compensation Table below, were awarded at the discretion of the Board. Specifically, in 2010, discretionary bonuses in the amount of $150,000 and $65,000 were paid to Messrs. Affeldt and McClellan, respectively, for their contributions to the ClubCorp Formation. Additionally, Mr. Walker was paid a discretionary bonus of $100,000 for his role in and contribution to the acquisition of the Country Club of the South located near Atlanta, Georgia, and Mr. Burnett received a discretionary bonus of $50,000 for the 2010 fiscal year. Finally, Mr. Berle was paid a guaranteed bonus of $150,000 pursuant to the terms of his employment offer and Mr. Sigler was paid a signing bonus of $200,000 pursuant to the terms of his employment offer.

        The bonus potential for our NEOs for 2011 remains unchanged from 2010. Although the Board has established a minimum Adjusted EBITDA threshold that must be attained before any bonuses may be paid, our bonus program for our NEOs for the 2011 fiscal year remains discretionary. Assuming the minimum preestablished Adjusted EBITDA threshold for 2011 is attained, the Board will determine in its sole discretion what bonus awards, if any, will be paid under the program. For purposes of the 2011 bonus program, "Adjusted EBITDA" means earnings before interest, taxes, depreciation and amortization, but excluding certain items such as impairments and write-offs, changes in interest rate cap agreements, gains or losses due to discontinued or divested operations and non-recurring or other similar events, as such EBITDA target may be adjusted by the Board from time to time for unusual or non-recurring events.

Long-Term Incentive Plan

        In 2011, we adopted a long-term cash incentive plan ("LTIP") pursuant to which participants, including our Named Executive Officers, are eligible to earn a cash award at the end of a three-year period, based on our achieving or exceeding a threshold Adjusted EBITDA performance goal for the fiscal year 2013 which will be measured following the completion of fiscal year 2013, which performance goal is defined in a substantially similar manner as for our 2011 bonus program, above.

        Our Named Executive Officers are eligible to receive a maximum cash payment under the LTIP in the amounts set forth below, subject to each executive's continued employment with us on the date of payment of the cash award:

Named Executive Officer
  Maximum Payout in FY 2014  

Eric L. Affeldt

   $ 700,000  

Curtis D. McClellan

   $ 310,000  

Mark A. Burnett

   $ 400,000  

Blake S. Walker

   $ 300,000  

        The actual payout, if any, will be determined by the Board in its sole discretion.

Equity-Based Awards

        We believe that successful performance over the long term is aided by the use of equity-based awards which create an ownership culture among our executive officers that provides an incentive to contribute to the continued growth and development of our business. To accomplish this goal, in 2007, we established the Management Profits Interest Program ("MPI") under the terms of the Amended and Restated Limited Liability Company Agreement of Fillmore, as amended (the "LLC Agreement"), to provide our employees, including our executive officers, as well as our directors and consultants, with

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incentives to align their interests with the interests of our Sponsor; our Sponsor who holds a majority interest in Fillmore which is the indirect holder of all of our outstanding common stock.

        We had granted awards of Class B units under the MPI, which constituted grants of time-vesting non-voting profits interests in Fillmore that entitled our executives to participate in the appreciation in our value above an applicable threshold and to thereby share in our future profits. In addition, several of our Named Executive Officers who had received Class B units purchased a number of Class A units of Fillmore, which represent capital interests in Fillmore. The purchase price for these Class A units was paid by each such executive partly in cash and partly with a full-recourse promissory note, all of which notes have been repaid or cancelled by January 2011.

        The grant of equity-based awards to our executive officers in the form of profits interests is intended to encourage the creation of long-term value for our equity holders by helping to align the interests of these officers with those of our equity holders and promote employee retention and ownership, all of which serve our overall compensation objectives. The amount of the equity-based awards granted to an executive officer was determined by taking into consideration the executive's position and responsibilities, overall individual performance, and our strategic goals, financial condition and performance. In 2010, 500 Class B units were granted to each of Messrs. Sigler and Walker in connection with their commencement of employment with us, although Mr. Sigler forfeited all of his units in connection with his termination of employment on December 21, 2010.

        The grants of time-vesting Class B unit awards were intended to incentivize our executive officers to drive long-term growth and value appreciation. Assuming an executive officer remained employed on each applicable vesting date, all of the Class B units were scheduled to vest as to 40% on the two-year anniversary following the grant date, with the remainder of the award vesting in 20% increments on the following three anniversaries of the grant. Pursuant to the terms of his Class B unit award agreement, our Chief Executive Officer was also entitled to accelerated vesting of his Class B units in the event of an Approved Sale or total Disposition of our Sponsor's investment in us (see "—Severance and Change in Control Benefits," below).

        In connection with the ClubCorp Formation, we converted all of the outstanding Class B unit awards, including the Class B units held by our executive officers, into Class A units (the "Converted Units") on the basis of an exchange ratio that took into account the number of Class B units granted, the applicable threshold value applicable to such units and the value of the distributions that the unitholder would have been entitled to receive had Fillmore been liquidated on November 30, 2010 in accordance with the terms of the distribution "waterfall" set forth in the LLC Agreement. In addition, any Converted Units that were not vested at the time of the conversion will continue to vest in accordance with the original vesting schedule applicable to such units. All Converted Units will also continue to be subject to the terms and conditions of the LLC Agreement. Certain of our Named Executive Officers did not receive any Converted Units following the conversion as the threshold values applicable to their Class B units had not been exceeded at the time of the conversion.

        Following the completion of this offering, we intend to adopt a new management profits interest program under the LLC Agreement for our executive officers, employees, directors and consultants that will be structured in a similar manner as the MPI described above.

Health Benefits

        We offer group health insurance coverage to all of our full-time employees. Because our employees, including our executive officers, are not eligible to participate in our group health plans for the first six months of their employment, we generally provide any executive who commences employment with us with a lump sum payment (plus a tax gross-up) equal to the difference between what the executive would have paid for health benefits under our plans and the executive's

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out-of-pocket costs for COBRA coverage under such executive's former employer's plan for a period of six months.

Retirement Benefits

        We maintain a defined contribution pension plan, or the 401(k) Plan, for all full time employees with at least six months of service, including the NEOs. The 401(k) Plan provides that each participant may make pre-tax and post-tax contributions pursuant to certain restrictions; however, we do not provide any type of discretionary contribution or matching contribution.

        We do not provide any non-qualified deferred compensation or defined benefit pension plans to any of our executive officers.

Severance and Change in Control Benefits

        We do not have a formal severance policy and, as a general matter, do not provide contractual severance protections to our NEOs. However, we have from time to time agreed to provide contractual severance protections pursuant to arm's-length negotiations of an executive officer's employment arrangement with us, and, specifically had agreed to provide limited severance protection in connection with hiring, among others, Messrs. McClellan and Berle. In general, severance payments and benefits are intended to ease the consequences of an unexpected or involuntary termination of employment within the first two years of employment and to give an executive an opportunity to find new employment. Typically, the severance benefit ranges from six months to two years of base salary if the executive is terminated by us without cause within the first two years of employment. Rights to severance expire following two years of employment as we expect that the executive will have fully transitioned into his or her new role such that severance protection will no longer be appropriate after the expiration of the two-year severance protection period.

        In addition, we may also enter into severance agreements with a terminating executive from time to time which agreements have in the past provided for severance benefits consisting of continued payment of base salary and club membership privileges for a period of time following termination of employment.

        We do not generally provide change of control benefits to our executives; however, any unvested Converted Units held by Mr. Affeldt will accelerate upon an "Approved Sale" or total "Disposition" (as such terms are defined in the LLC Agreement and summarized under "—Potential Payments Upon Termination or Change in Control" below) of our Sponsor's investment in us, other than by means of an initial public offering, which benefit was negotiated in connection with Mr. Affeldt's overall compensation package at the time he commenced employment with us.

Perquisites

        We typically compensate our executive officers in cash and equity rather than with perquisites, and do not view perquisites as a significant element of our total compensation structure. However, pursuant to our executive relocation policy, we typically reimburse executive officers who are required to relocate in connection with the commencement of their employment with us. We also pay premiums pursuant to a life insurance policy on the life of Mr. Affeldt which provides a death benefit to Mr. Affeldt's beneficiaries in the amount of $2 million.

        All of our employees, including our executive officers, are entitled to complimentary use of our club facilities and other company-owned properties, as well as discounts on various products and services sold or provided at our facilities. In addition, our executives may elect to activate a membership without payment of an initiation fee or monthly dues at a company-owned club of their choosing. Because we do not incur any additional expense in connection with the provision of

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membership privileges to our executives and because such membership privileges are not substantially different than the general use privileges extended to our employees, we do not consider either club membership or club use privileges to be a company-provided perquisite.

Summary Compensation Table

        The following table provides summary information concerning compensation paid or accrued by us to or on behalf of our NEOs for services provided to us during the year ended December 28, 2010:

Name and Position
  Year   Salary(1)   Bonus   Stock
Awards(2) 		  All Other
Compensation 		  Total  

Eric L. Affeldt
Chief Executive Officer and President

     2010   $ 447,945   $ 150,000 (3) $ —   $ 6,445 (8) $ 604,390  

Curtis D. McClellan
Chief Financial Officer and Treasurer

     2010   $ 269,231   $ 65,000 (3) $ —   $ —   $ 334,231  

Dolf A. Berle(10)
Former Executive Vice President, Hospitality

     2010   $ 288,462   $ 150,000 (4) $ —   $ —   $ 438,462  

Mark A. Burnett,
Executive Vice President, Operations Golf & Country Club

     2010   $ 312,500   $ 50,000 (5) $ —   $ —   $ 362,500  

Blake S. Walker,
Chief Acquisitions and Development Officer

     2010   $ 288,462   $ 100,000 (6) $ —   $ 6,355 (9) $ 394,817  

Dwayne R. Sigler,
Former Chief Marketing Officer

     2010   $ 265,481   $ 200,000 (7) $ —   $ 8,202 (9) $ 473,683  
(1)
During 2010, each of our NEOs was required to take two weeks' furlough without pay, except for our Chief Executive Officer, who took three weeks' furlough without pay during the 2010 fiscal year. The total salary earned for 2010 represents a reduction of Mr. Affeldt's 2010 annual salary of $475,000 by three weeks of unpaid furlough, and, for each of Messrs. McClellan, Berle, Burnett, Walker and Sigler, a reduction of each of his 2010 annual base salary of $280,000, $300,000, $325,000, $300,000 and $275,000, respectively, by two weeks of unpaid furlough.

(2)
Neither we nor Fillmore has historically recognized any charge for Class B unit awards in accordance with Financial Accounting Standards Board Accounting Codification Standards Topic 718 ("ASC Topic 718").

(3)
Represents bonus amount earned by each of Mr. Affeldt and Mr. McClellan in connection with their contributions to the successful completion of the ClubCorp Formation.

(4)
Represents guaranteed bonus payment pursuant to terms of Mr. Berle's offer letter.

(5)
Represents discretionary bonus paid to Mr. Burnett in respect of the 2010 fiscal year.

(6)
Represents a deal bonus paid to Mr. Walker in connection with his role in and contribution to our acquisition of the Country Club of the South.

(7)
Represents signing bonus paid to Mr. Sigler upon the commencement of his employment with us.

(8)
Amount represents value of premiums paid by us pursuant to Mr. Affeldt's life insurance policy, including a tax gross-up on the value of the premiums.

(9)
Represents six months of COBRA premium payments, in an amount equal to the difference between what the executive would have paid for health benefits under our plans and the executive's out-of-pocket costs for COBRA coverage under the plans of his or her previous employer, including a tax gross-up on the values of such payments.

(10)
Mr. Berle terminated employment with us on February 4, 2011.

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Grants of Plan-based Awards in 2010

        The following table provides supplemental information relating to grants of plan-based awards made to our NEOs during the 2010 fiscal year.

 
    
   All Other Stock Awards:  
Name
  Grant Date   Number of Class B
units (#)(1)(2) 		  Grant date fair
value of stock and
option awards ($)(4) 		 

Eric L. Affeldt

   —     —     —  

Curtis D. McClellan

   —     —     —  

Dolf A. Berle

   —     —     —  

Mark A. Burnett

   —     —     —  

Blake S. Walker

   May 17, 2010     500 (3) $ 0  

Dwayne R. Sigler

   May 17, 2010     500 (3) $ 0  
(1)
All awards represent profits interests in Fillmore issued under the MPI as Class B units.

(2)
We have not granted options to any of our employees.

(3)
The Class B units were cancelled effective as of November 30, 2010 in connection with the ClubCorp Formation, as the threshold values applicable to such units had not been exceeded at the time of the conversion of outstanding Class B units into Class A units in Fillmore (see discussion under "Equity-Based Awards," above).

(4)
Neither we nor Fillmore has recognized any accounting expense in relation to the Class B unit awards under ASC Topic 718.

Outstanding Equity Awards at December 28, 2010

        The following table provides information regarding outstanding equity awards held by our NEOs as of December 28, 2010, including on an "as converted" basis following the conversion of outstanding Class B unit awards into Class A units in Fillmore in connection with the ClubCorp Formation.

 
   All Other Stock Awards(1)  
Name
  Number of Class B units that
have not vested (shown as
Class B units) (#) 		  Number of Converted Units
that have not vested (#)
(shown as Converted Units) 		  Market value of units that
have not vested ($)(2) 		 

Eric L. Affeldt

     600     786.57   $ 726,223.61  

Curtis D. McClellan

     300     76.36   $ 70,498.08  

Dolf A. Berle(3)

     500     127.26   $ 117,496.79  

Mark A. Burnett

     200     262.19   $ 242,073.31  

Blake S. Walker(4)

     500     0   $ —  

Dwayne R. Sigler(4)

     N/A     N/A     N/A  
(1)
Represent time-vesting Class B units granted under the MPI, including on an "as converted" basis.

(2)
The market value of a Converted Unit as of December 28, 2010 was $923.28.

(3)
Mr. Berle forfeited all equity awards upon his resignation effective February 4, 2011.

(4)
The Class B units granted to Messrs. Walker and Sigler were cancelled effective as of November 30, 2010 in connection with the ClubCorp Formation (See "—Grants of Plan-based Awards in 2010" above). Moreover, Mr. Sigler forfeited all equity awards in connection with his termination of employment on December 21, 2010.

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Equity Awards Vested in 2010

        The following table provides information regarding the vesting of Class B units during the fiscal year ended December 28, 2010, including on an "as converted" basis following the conversion of outstanding Class B unit awards into Class A units in Fillmore in connection with the ClubCorp Formation.

 
   Stock Awards  
Name
  Number of Class B units
acquired on vesting (shown
as Class B units) (#) 		  Number of Converted Units
acquired on vesting (shown
as Converted Units) 		  Value realized ($)(1)  

Eric L. Affeldt

     600     786.57   $ 726,223.61  

Curtis D. McClellan

     200     50.90   $ 46,998.72  

Dolf A. Berle(2)

     0     0   $ —  

Mark A. Burnett

     200     262.19   $ 242,073.31  

Blake S. Walker

     0     0   $ —  

Dwayne R. Sigler(3)

     0     0   $ —  
(1)
Calculated on the basis of the market value of a Converted Unit as of December 28, 2010 of $923.28.

(2)
Mr. Berle forfeited all of his equity awards upon his resignation effective February 4, 2011.

(3)
The Class B units granted to Mr. Sigler were cancelled in connection with the ClubCorp Formation and his termination of employment on December 21, 2010.

Executive Employment Agreements

Eric L. Affeldt

        We entered into a new employment agreement with Mr. Affeldt, effective as of March 1, 2011, pursuant to which he continues to serve as our President and Chief Executive Officer, and as a member of our Board. Mr. Affeldt's initial base salary is set at $500,000 (although Mr. Affeldt voluntarily took a five percent pay reduction to $475,000 as a result of the challenging economic environment during the 2009 and 2010 fiscal years). Mr. Affeldt is eligible to earn a discretionary annual bonus of up to 100% of his current base salary.

        Mr. Affeldt has also executed our standard Confidentiality and Non-Solicitation Agreement pursuant to which he agreed, among other things, to refrain from recruiting or soliciting for hire any employee employed by us during the sixty-day period preceding his termination of employment, or otherwise induce any such employee to terminate employment with us.

        Pursuant to the terms of the MPI, Mr. Affeldt was awarded 3,000 Class B units on February 25, 2007, which vest over a five year period (commencing on December 26, 2006), subject to accelerated vesting in the event of an Approved Sale or a total Disposition of our Sponsor's investment in us (other than through an initial public offering). Mr. Affeldt also agreed to purchase 143.38 Class A units. Following the ClubCorp Formation, Mr. Affeldt held a total of 4,076.22 Class A units as of December 28, 2010 (including 786.57 unvested units).

        Prior to joining us as President and Chief Executive Officer, Mr. Affeldt was a principal in KSL Capital Partners, LLC, our Sponsor. Previously, Mr. Affeldt was compensated solely by our Sponsor, which compensation package included a pro-rata share in the carried interest payable to the Sponsor on account of profits earned by the Sponsor from its investments in us, among other companies. Mr. Affeldt retained a portion of such total carried interest from our Sponsor's investment, which interest remains subject to the same terms and conditions as if Mr. Affeldt had remained a principal in

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our Sponsor, except that continued vesting of the carried interest is subject to Mr. Affeldt's continued employment with us.

Curtis D. McClellan

        We entered into an employment agreement with Mr. McClellan, effective as of November 24, 2008, pursuant to which he commenced serving as our Chief Financial Officer and Treasurer. Mr. McClellan's base salary was set at $280,000. Mr. McClellan is currently eligible to earn a discretionary annual bonus of up to 70% of his base salary, and had also received a signing bonus of $40,000 at the commencement of his employment with us.

        Had Mr. McClellan's employment with us terminated without cause (but not upon death or disability) within the first two years of his commencement of employment, he would have been entitled to receive a severance payment equal to one times his base salary, payable in a lump sum.

        Mr. McClellan received with a lump sum payment (plus a tax gross-up) equal to the difference between what he would have paid for health benefits under our plans and his out-of-pocket costs for COBRA coverage over a period of six months. Mr. McClellan has also executed our standard form Confidentiality and Non-Solicitation Agreement.

        Pursuant to the terms of the MPI, Mr. McClellan had received 500 Class B unit awards which vest over a five year period (commencing on November 15, 2008). Mr. McClellan also agreed to purchase 98.77 Class A units, which were financed in part through a full-recourse promissory note which was repaid in January 2011. Following the ClubCorp Formation, Mr. McClellan held a total of 226.03 Class A units as of December 28, 2010 (including 76.36 unvested units).

Dolf A. Berle

        We entered into an employment agreement with Mr. Berle, effective as of August 24, 2009, pursuant to which he commenced serving as our Executive Vice President, Hospitality. Mr. Berle's base salary was set at $300,000. Mr. Berle was eligible to earn a discretionary annual bonus of up to 100% of his current base salary.

        If we had terminated Mr. Berle's employment without cause within the first two years of the commencement of his employment, he would have been entitled to receive a severance payment equal to one times his base salary, payable in a lump sum, subject to his execution of a release.

        Under the terms of his employment agreement, Mr. Berle was eligible for a relocation allowance of up to $50,000, and received relocation assistance from us in the aggregate amount of $99,036.29, inclusive of a gross-up for taxes. However, in connection with his resignation on February 4, 2011, Mr. Berle repaid half of these charges, or $42,051.95, in accordance with the terms of his employment agreement.

        Upon commencement of his employment, Mr. Berle had also received with a lump sum payment (plus a tax gross-up) equal to the difference between what he would have paid for health benefits under our plans and his out-of-pocket costs for COBRA coverage for a period of six months. Mr. Berle had also executed our standard form Confidentiality and Non-Solicitation Agreement.

        Pursuant to the terms of the MPI, Mr. Berle had received 500 Class B unit awards which vested over a five year period (commencing on August 24, 2009). Mr. Berle had also agreed to purchase 98.77 Class A units. We agreed to repurchase all of the Class A units Mr. Berle had purchased in 2009 for an amount equal to the principal and accrued interest payable through January 31, 2011 under the terms of his promissory note. Mr. Berle also forfeited all of his outstanding equity awards following his resignation on February 4, 2011.

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Mark A. Burnett

        We entered into an employment agreement with Mr. Burnett, effective as of December 1, 2006, pursuant to which he commenced serving as our executive Vice President of Golf and Country Club Operations. Mr. Burnett's base salary was set at $300,000. Mr. Burnett is eligible to earn a discretionary annual bonus of up to 100% of his current base salary and had also received a signing bonus of $275,000 upon the commencement of his employment with us.

        Mr. Burnett received with a lump sum payment (plus a tax gross-up) equal to the difference between what he would have paid for health benefits under our plans and his out-of-pocket costs for COBRA coverage over a period of six months. Mr. Burnett has also executed our standard form Confidentiality and Non-Solicitation Agreement.

        Pursuant to the terms of the MPI, Mr. Burnett had received 1,000 Class B unit awards which vest over a five year period (commencing on December 26, 2006). Mr. Burnett had also agreed to purchase 197.34 Class A units. Following the ClubCorp Formation, Mr. Burnett held a total of 1,510.08 Class A units as of December 28, 2010 (including 262.19 unvested units).

Blake S. Walker

        We entered into an employment agreement with Mr. Walker, effective as of December 21, 2009 pursuant to which he commenced serving as our Chief Acquisitions and Development Officer. Mr. Walker's base salary was set at $300,000 per year. Mr. Walker is eligible to earn a discretionary performance bonus based on his overall performance and on the successful acquisition of golf and country clubs and other assets.

        Under the terms of his employment agreement, Mr. Walker received a lump sum payment (plus a tax gross-up) equal to the difference between what he would have paid for health benefits under our plans and his out-of-pocket costs for COBRA coverage for a period of six months. Mr. Walker has also executed our standard form Confidentiality and Non-Solicitation Agreement.

        Pursuant to the terms of the MPI, Mr. Walker had received 500 Class B unit awards which would have vested over a five year period. All of these Class B units were cancelled in connection with the ClubCorp Formation.

Separation Agreement with Dwayne R. Sigler

        We entered into a separation agreement with Dwayne Sigler effective as of December 21, 2010 pursuant to which we agreed to continue to pay Mr. Sigler's base salary for a minimum of two months and a maximum of nine months following termination of his employment, subject to Mr. Sigler executing and not revoking a release of claims against us. Mr. Sigler agreed that his severance payments would cease upon his securing full-time employment or a consulting arrangement lasting for more than eight weeks, but in no event would he receive less than two months' severance under the terms of the separation agreement. In addition, Mr. Sigler was granted a club membership without payment of an initiation fee or monthly dues at a club of his choice, which includes the right to purchase meals at a discount, for a period of two years following termination. Mr. Sigler also forfeited all of his Class B units upon termination of his employment with us.

Potential Payments Upon Termination or Change in Control

        The following table presents the value of the accelerated Converted Units granted to our Chief Executive had there been a change in control on December 28, 2010. In addition, the table sets forth the amount Mr. Berle would have been entitled to receive as severance had we terminated his employment without cause on December 28, 2010. No other benefits or payments would have been

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payable to any of our other NEOs had there been a change in control or an employment termination on December 28, 2010.

Name
  Base Salary
payable on a
without cause
termination 		  Converted Units
becoming vested
upon Change in
Control ($) 		  Total ($)(1)  

Eric L. Affeldt

   $ —   $ 726,223.61   $ 726,223.61  

Dolf A. Berle

   $ 300,000   $ —   $ 300,000.00  
(1)
Amount represents the fair market value of $923.28 for a Converted Unit as of December 28, 2010, multiplied by 786.57, which was the number of unvested Converted Units held by Mr. Affeldt that would have accelerated had there been a change in control on December 28, 2010.

        As noted above, all unvested Class B units awarded to our Chief Executive Officer will accelerate in the event of an Approved Sale or a total Disposition of our Sponsor's investment in us, other than by means of an initial public offering. Under the terms of the LLC Agreement:

    a)
    "Approved Sale" means a sale of Fillmore, whether by way of merger, consolidation or a sale of all or substantially all of Fillmore's assets or ownership interests; and

    b)
    "Disposition" means a sale, exchange, redemption or other disposition by our Sponsor of its investment in us.

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PRINCIPAL STOCKHOLDERS

        We are a wholly-owned subsidiary of Fillmore CCA Investment, LLC ("Fillmore"), which indirectly owns all of our issued and outstanding capital stock. All of Fillmore's issued and outstanding equity interests are owned by Fillmore CCA Holdings I, LLC ("Fillmore LLC") and certain members of our management. Fillmore LLC is owned by investment funds affiliated with KSL Capital Partners, LLC ("KSL"). KSL is able to control all actions by the board of directors of Fillmore by virtue of their being able to appoint a majority of such directors.

        All of our issued and outstanding shares of capital stock have been pledged as collateral to the lenders under our secured credit facilities described under "Description of Other Indebtedness." If we were to default on our Senior Secured Credit Facility, the lenders could foreclose on these shares of our common stock, which would result in a change of control.

        Beneficial ownership is determined in accordance with the rules of the SEC. Under these rules, a person is deemed to be a beneficial owner of a security if that person has or shares voting power, which includes the power to vote or to direct the voting of such security, or investment power, which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities.

        The following table sets forth as of March 25, 2011 certain information regarding the beneficial ownership of the equity securities of Fillmore by each person who beneficially owns more than five percent of Fillmore's equity interests, and by the directors and executive officers of us and Fillmore, individually, and by the directors and executive officers of us and Fillmore as a group. Unless otherwise specified, each beneficial owner has sole voting power and sole investment power over the LLC units indicated. Unless otherwise specified, the address of each beneficial owner is c/o ClubCorp Club Operations, Inc., 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234.

 
   LLC Units Beneficially
Owned 		 
Name and Address of Beneficial Owner
  Number   Percent  

5% Unitholders

              

Affiliates of KSL(1)

     425,756.01     97.76 %

Directors and Executive Officers

              

Eric L. Affeldt

     3,289.65     0.76 %

Curtis D. McClellan

     149.67     0.03 %

Mark A. Burnett

     1,247.89     0.29 %

David B. Woodyard

     518.47     0.12 %

James K. Walters

     149.67     0.03 %

Blake S. Walker

     —     0.00 %

Daniel T. Tilley

     259.24     0.06 %

Ingrid J. Keiser

     225.81     0.05 %

Martin J. Newburger(1)

     —     0.00 %

Eric C. Resnick(1)

     425,756.01     97.76 %

Michael S. Shannon(1)

     425,756.01     97.76 %

Steven S. Siegel(1)

     —     0.00 %

All directors and officers as a group (11 individuals)

     431,596.41     98.91 %
(1)
100% of such units are owned by Fillmore CCA Holdings I, LLC. Fillmore CCA Holdings I, LLC is 5.066% owned by Fillmore CCA (Alternative), L.P., 9.234% owned by Fillmore CCA Supplemental TE (Alternative), L.P., 12.580% owned by Fillmore CCA TE

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    (Alternative), L.P., 12.735% owned by Fillmore CCA TE-A (Alternative), L.P., 1.219% owned by KSL Capital Partners II FF, L.P., 6.688% owned by KSL Capital Partners Supplemental II, L.P., 5.914% owned by KSL CCA 2010 Co-Invest 2, L.P., 36.723% owned by KSL CCA 2010 Co-Invest, L.P., 3.690% owned by KSL CCA Co-Invest 2, L.P. and 6.151% owned by KSL CCA Co-Invest, L.P (collectively, the "KSL Investors"). KSL Capital Partners II GP, LLC is the sole general partner of Fillmore CCA (Alternative), L.P., Fillmore CCA TE (Alternative), L.P., Fillmore CCA TE-A (Alternative), L.P. and KSL Capital Partners II FF, L.P. KSL Capital Partners Supplemental II GP, LLC is the sole general partner of Fillmore CCA Supplemental TE (Alternative), L.P. and KSL Capital Partners Supplemental II, L.P. KSL Capital Partners II Co-Invest GP, LLC is the sole general partner of KSL CCA 2010 Co-Invest 2, L.P., KSL CCA 2010 Co-Invest, L.P., KSL CCA Co-Invest 2, L.P. and KSL CCA Co-Invest, L.P. The investment decisions of each of KSL Capital Partners II GP, LLC, KSL Capital Partners Supplemental II GP, LLC and KSL Capital Partners II Co-Invest GP, LLC (collectively, the "KSL General Partners," and together with the KSL Investors, the "KSL Funds") are made by its respective investment committee, which exercises voting and dispositive power over the units indirectly owned by the KSL General Partners. The investment committee of each of the KSL General Partners consists of Craig W. Henrich, Peter R. McDermott, Martin J. Newburger, Eric C. Resnick, Michael S. Shannon, Bernard N. Siegel, Steven S. Siegel and Richard A. Weissman. A decision of each investment committee is determined by the affirmative vote of a majority of the members of such committee, which majority must include Messrs. Shannon and Resnick. Messrs. Henrich, McDermott, Newburger, Resnick, Shannon, B. Siegel, S. Siegel and Weissman disclaim beneficial ownership of these units except to the extent of their individual pecuniary interest in these entities. The address for each KSL Fund and Messrs. Henrich, McDermott, Newburger, Resnick, Shannon, Siegel, Siegel and Weissman is c/o KSL Capital Partners, LLC, 100 Fillmore Street, Suite 600, Denver, Colorado 80206.

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 CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

Management Agreement

        We have entered into a management agreement with an affiliate of KSL, pursuant to which we are provided financial and management consulting services in exchange for an annual fee of $1 million. In the event of a financing, refinancing or direct or indirect sale of all or substantially all of our equity or assets, the management company will also be entitled to receive a fee equal to 1% of the lenders' maximum commitments, in the case of a financing or refinancing, or 1% of the total consideration paid, in the case of a sale. In addition, we have agreed to reimburse the management company for all of its reasonable out-of-pocket costs and expenses incurred in providing management services to us and certain of our affiliates. As of December 28, 2010, we have paid aggregate fees of $5.5 million pursuant to the management agreement since it was entered into.

Reciprocal Arrangements

        We have entered into reciprocal arrangements whereby members of Barton Creek Resort & Spa, The Homestead, The Owners Club at Barton Creek and The Owners Club at The Homestead can pay upgraded dues to have access to our clubs and facilities and by virtue of which we have revenue sharing arrangements with the resorts and owners clubs owned by affiliates of KSL.

Offer Letters

        We have entered into offer letters and other agreements containing compensation, termination and change of control provisions, among others, with certain of our executive officers.

Other Transactions

        In February 2009, we sold the San Francisco Tennis Club, a non-core asset in downtown San Francisco, to an affiliate of Western Athletic Clubs, Inc., for $15.0 million, which was paid as $1.0 million in cash and $14.0 million in the form of an 8% promissory note secured by the property sold. The note was repaid in full in June 2010. Western Athletic Clubs, Inc. is controlled by affiliates of KSL.

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DESCRIPTION OF OTHER INDEBTEDNESS

Secured Credit Facilities

        In connection with the ClubCorp Formation, we entered into a credit agreement with Citicorp North America, Inc., as administrative agent, swing line lender and L/C issuer, Citigroup Global Markets Inc. as sole arranger and sole bookrunner, and the other lenders from time to time party thereto.

        General.    The borrower under our credit agreement is ClubCorp. The secured credit facilities under such credit agreement provide for a six-year term loan facility in the amount of $310.0 million and a five-year revolving credit facility in the amount of $50.0 million, and include letter of credit and swing line facilities. ClubCorp has the option to increase the term loan facility by up to $50.0 million and the revolving credit facility by up to an additional $25.0 million, both subject to conditions and restrictions in the secured credit facilities. We are required to make principal payments equal to 0.25% of the original term loan facility on the last business day of each March, June, September and December beginning in March 2011. Proceeds from the $310.0 million term loan were used to repay certain existing indebtedness of subsidiaries of ClubCorp on the initial borrowing date and to pay related expenses in connection with the ClubCorp Formation. The $50.0 million revolving credit facility can be utilized in one or more loans, not to exceed $50.0 million at any one time (inclusive of standby letter of credit usage and swing line loans). Proceeds of the revolving credit facility are used for working capital and general corporate purposes of ClubCorp and its subsidiaries.

        Interest Rates and Fees.    Loans under the secured facilities bear interest at the higher of (i) 6.0% or (ii) an elected LIBOR plus a margin of 4.5%. We may elect a one, two, three or six-month LIBOR. The interest payment is due on the last day of each elected LIBOR period.

        Our secured credit facilities bear a commitment fee on all undrawn amounts under the revolving credit facility, payable quarterly in arrears.

        Prepayments.    Beginning with the fiscal year ended December 27, 2011, our secured credit facilities require us to prepay outstanding term loans, subject to certain exceptions, with:

    •
    50% (with a leverage-based stepdown) of our excess cash flows as defined by the credit agreement;

    •
    100% of the net cash proceeds of all non-ordinary course asset sales, casualty events or other dispositions of property; we may reinvest or commit to reinvest certain of those proceeds in assets to be used in our business or to make certain other permitted investments within 360 days (so long as such reinvestment is completed within 90 days of the end of such period) in lieu of making such prepayment; and

    •
    100% of the net cash proceeds of any incurrence of debt, other than proceeds from debt permitted under the new credit facilities.

        The foregoing mandatory prepayments will be applied to the scheduled installments of principal of the term loan facility in inverse order of maturity other than the principal payment due on the maturity date.

        We may voluntarily repay outstanding loans under our secured credit facilities in whole or in part upon prior notice without premium or penalty, other than certain fees incurred in connection with a repricing transaction.

        Guarantors.    All obligations under our secured credit facilities are guaranteed by ClubCorp's immediate parent company, CCA Club Operations Holdings, LLC, and each existing and all

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subsequently acquired or organized direct and indirect restricted subsidiaries of ClubCorp, other than certain excluded subsidiaries (collectively, the "guarantors").

        Security.    All obligations of the borrower and the guarantors are secured, subject to permitted liens and other exceptions, by a first-priority perfected security interest in substantially all the assets of the borrower and the guarantors, including, but not limited to (1) a perfected pledge of all the domestic capital stock owned by the borrower and the guarantors and (2) perfected security interests in and mortgages on substantially all tangible and intangible personal property and material fee-owned property of the borrower and the guarantors, subject to certain exclusions.

        Covenants, Representations and Warranties.    Our secured credit facilities contain customary representations and warranties and customary affirmative and negative covenants, including, with respect to restrictive covenants, among other things, restrictions on ClubCorp and its restricted subsidiaries to:

    •
    create, incur, assume or suffer to exist any liens on any of their assets;

    •
    make or hold any investments (including loans and advances);

    •
    incur or guarantee additional indebtedness;

    •
    enter into mergers or consolidations;

    •
    conduct sales and other dispositions of property or assets;

    •
    pay dividends or distributions on capital stock or redeem or repurchase capital stock;

    •
    change the nature of the business;

    •
    enter into transactions with affiliates; and

    •
    enter into burdensome agreements.

        In addition, the credit agreement governing our secured credit facilities contains covenants that require ClubCorp and its restricted subsidiaries to maintain specified financial ratios, which include the following ratios:

    •
    consolidated total debt to consolidated Adjusted EBITDA; and

    •
    consolidated Adjusted EBITDA to consolidated interest expense.

        Events of Default.    Events of default under our secured credit facilities include, among other things, non-payment of principal when due, nonpayment of interest or other amounts (subject to a five business day grace period), covenant defaults, inaccuracy of representations or warranties in any material respect, bankruptcy and insolvency events, cross defaults and cross acceleration of certain indebtedness, certain monetary judgments, ERISA events, actual or asserted invalidity of material guarantees or security documents and a change of control (including both a pre- and post-initial public offering provision).

Certain Other Indebtedness

        General Electric Capital Corporation.    In July 2008, one of our subsidiaries entered into a new mortgage loan with General Electric Capital Corporation ("GECC") for $32.0 million which matures in July 2011. Such subsidiaries have the right to extend the term of the loan for successive years up to July 2013 upon satisfaction of certain conditions of the loan agreement. As of December 28, 2010, we expect to meet the required conditions to extend for an additional year and intend to so extend the loan with GECC. The loan is collateralized by the assets of two golf and country clubs. Interest rates are variable based on 30 day LIBOR rates. Payments on the loan are interest only through July 2011

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with principal payments commencing in September 2011 based upon a twenty-five year amortization schedule.

        Atlantic Capital Bank.    In October 2010, one of our subsidiaries entered into a new mortgage loan with Atlantic Capital Bank for $4.0 million of debt maturing in 2015 with 25-year amortization. The loan is collateralized by the assets of one golf and country club. Interest rates are variable based on 30 day LIBOR rates.

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THE EXCHANGE OFFER

General

        We are offering to exchange a like principal amount of exchange notes for any or all outstanding notes on the terms and subject to the conditions set forth in this prospectus and accompanying letter of transmittal. We refer to the offer as the "exchange offer." You may tender some or all of your outstanding notes pursuant to the exchange offer.

        As of the date of this prospectus, $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 is outstanding. This prospectus, together with the letter of transmittal, is first being sent to all registered holders of outstanding notes known to us on or about            , 2011. Our obligation to accept outstanding notes for exchange pursuant to the exchange offer is subject to the satisfaction or waiver of certain conditions set forth under "—Conditions to the Exchange Offer" below. We anticipate that each of the conditions will be satisfied and that no waivers will be necessary.

Purpose and Effect of the Exchange Offer

        In connection with the private offering and sale of the outstanding notes, we entered into a registration rights agreement with the initial purchasers of the outstanding notes in which we agreed to use commercially reasonable efforts to file a registration statement with respect to a registered offer to exchange the outstanding notes for the exchange notes and use commercially reasonable efforts to cause the registration statement to be declared effective under the Securities Act no later than 360 days following the closing date of the issuance of the outstanding notes. The description of the registration rights agreement contained in this prospectus is only a brief summary of the agreement. It does not purport to be complete and is qualified in its entirety by reference to all of the terms, conditions and provisions of the registration rights agreement. For further information, please refer to the registration rights agreement a copy of which is available as set forth below under the caption "—Additional Information." The exchange offer is referred to in this prospectus as the "exchange offer." The form and terms of the exchange notes will be substantially identical in all material respects to the form and terms of the outstanding notes, except that the exchange notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions, registration rights or any increase in interest rate upon a failure to fulfill certain of our obligations under the registration rights agreement. The outstanding notes were issued on November 30, 2010 (the "Issue Date").

        If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, we are not permitted to effect an exchange offer, (ii) the exchange offer is not consummated within 30 business days following the date the registration statement with respect to a registered offer to exchange the outstanding notes for the exchange notes is declared effective under the Securities Act., (iii) in certain circumstances, certain holders of unregistered exchange notes so request, or (iv) in the case of any holder of outstanding notes that participates in the exchange offer, such holder does not receive exchange notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of ours or as a participating broker-dealer), then in each case, we will (x) promptly deliver to the holders and the trustee for the notes written notice thereof and (y) at our sole expense, (a) as promptly as practicable, use our commercially reasonable efforts to file a shelf registration statement covering resales of the outstanding notes and use commercially reasonable efforts to keep effective the shelf registration statement until the earliest of 90 days after the shelf registration statement is declared effective or such time as all of the applicable notes have been sold thereunder or otherwise sold.

        If you wish to exchange your outstanding notes for exchange notes in the exchange offer, you will be required to make the following written representations:

    •
    you are not our "affiliate" within the meaning of Rule 405 of the Securities Act;

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    •
    you have no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the exchange notes in violation of the provisions of the Securities Act;

    •
    you are not engaged in, and do not intend to engage in, a distribution of the exchange notes; and

    •
    you are acquiring the exchange notes in the ordinary course of your business.

        Each broker-dealer that receives exchange notes for its own account in exchange for outstanding notes, where the broker-dealer acquired the outstanding notes as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. Please see "Plan of Distribution."

Resale of Exchange Notes

        Based on interpretations by the SEC set forth in no-action letters issued to third parties, we believe that you may resell or otherwise transfer exchange notes issued in the exchange offer without complying with the registration and prospectus delivery provisions of the Securities Act, if:

    •
    you are not our "affiliate" within the meaning of Rule 405 under the Securities Act;

    •
    you do not have an arrangement or understanding with any person to participate in a distribution of the exchange notes in violation of the provisions of the Securities Act;

    •
    you are not engaged in, and do not intend to engage in, a distribution of the exchange notes in violation of the provisions of the Securities Act; and

    •
    you are acquiring the exchange notes in the ordinary course of your business.

        If you are our "affiliate," or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the exchange notes, or are not acquiring the exchange notes in the ordinary course of your business:

    •
    you cannot rely on the position of the SEC set forth in Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling, dated July 2, 1993, or similar no-action letters; and

    •
    in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the exchange notes.

        This prospectus may be used for an offer to resell, resale or other transfer of exchange notes only as specifically set forth in this prospectus. With regard to broker-dealers, only broker-dealers that acquired the outstanding notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives exchange notes for its own account in exchange for outstanding notes, where such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. Please read "Plan of Distribution" for more details regarding the transfer of exchange notes.

Terms of the Exchange Offer

        On the terms and subject to the conditions set forth in this prospectus and in the accompanying letters of transmittal, we will accept for exchange in the exchange offer any outstanding notes that are validly tendered and not validly withdrawn prior to the expiration date. Outstanding notes may only be

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tendered in denominations of $2,000 and integral multiples of $1,000 in excess thereof. In exchange for each outstanding note surrendered in the exchange offer, we will issue exchange notes with a like principal amount.

        The form and terms of the exchange notes will be substantially identical in all material respects to the form and terms of the outstanding notes, except that the exchange notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions, registration rights or any increase in interest rate upon a failure to fulfill certain of our obligations under the registration rights agreement. The exchange notes will be issued under and entitled to the benefits of the indenture that authorized the issuance of the outstanding notes. For a description of the indenture, see "Description of Notes."

        The exchange offer is not conditioned upon any minimum aggregate principal amount of outstanding notes being tendered for exchange.

        As of the date of this prospectus, $415,000,000 million aggregate principal amount of the 10% Senior Secured Notes due 2018 are outstanding. This prospectus and the letters of transmittal are being sent to all registered holders of outstanding notes. There will be no fixed record date for determining registered holders of outstanding notes entitled to participate in the exchange offer. We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the SEC. Outstanding notes that are not tendered for exchange in the exchange offer will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits such holders have under the indenture relating to such holders' series of outstanding notes and the registration rights agreement, except that we will not have any further obligation to you to provide for the registration of the outstanding notes under the registration rights agreement.

        We will be deemed to have accepted for exchange properly tendered outstanding notes when they have given written notice of the acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the exchange notes from us and delivering exchange notes to holders. Subject to the terms of the registration rights agreement, we expressly reserve the right to amend or terminate the exchange offer and to refuse to accept the occurrence of any of the conditions specified below under "—Conditions to the Exchange Offer."

        If you tender your outstanding notes in the exchange offer, you will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of outstanding notes. We will pay all charges and expenses, other than certain applicable taxes described below in connection with the exchange offer. It is important that you read "—Fees and Expenses" below for more details regarding fees and expenses incurred in the exchange offer.

Expiration Date; Extensions; Amendments

        As used in this prospectus, the term "expiration date" means 5:00 p.m., New York City time, on            , 2011. However, if we, in our sole discretion, extend the period of time for which the exchange offer is open, the term "expiration date" will mean the latest time and date to which we shall have extended the expiration of such exchange offer.

        To extend the period of time during which an exchange offer is open, we will notify the exchange agent of any extension or written notice, followed by notification by press release or other public announcement to the registered holders of the outstanding notes no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.

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        We reserve the right, in our sole discretion:

    •
    to delay accepting for exchange any outstanding notes (only in the case that we amend or extend the exchange offer);

    •
    to extend the exchange offer or to terminate the exchange offer if any of the conditions set forth below under "—Conditions to the Exchange Offer" have not been satisfied by giving written notice of such delay, extension or termination to the exchange agent; and

    •
    subject to the terms of the registration rights agreement, to amend the terms of the exchange offer in any manner. In the event of a material change in the exchange offer, including the waiver of a material condition, we will extend the offer period, if necessary, so that at least five business days remain in such offer period following notice of the material change.

        Any delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by written notice to the registered holders of the outstanding notes. If we amend an exchange offer in a manner that we determine to constitute a material change, we will promptly disclose the amendment in a manner reasonably calculated to inform the holders of applicable outstanding notes of that amendment.

Conditions to the Exchange Offer

        Despite any other term of the exchange offer, we will not be required to accept for exchange, or to issue exchange notes in exchange for, any outstanding notes, and we may terminate or amend the exchange offer as provided in this prospectus prior to the expiration date if in our reasonable judgment:

    •
    the exchange offer or the making of any exchange by a holder violates any applicable law or interpretation of the SEC; or

    •
    any action or proceeding has been instituted or threatened in writing in any court or by or before any governmental agency with respect to the exchange offer that, in our judgment, would reasonably be expected to impair our ability to proceed with the exchange offer.

        In addition, we will not be obligated to accept for exchange the outstanding notes of any holder that has not made to us:

    •
    the representations described under "—Purpose and Effect of the Exchange Offer," "—Procedures for Tendering" and "Plan of Distribution;" or

    •
    any other representations as may be reasonably necessary under applicable SEC rules, regulations, or interpretations to make available to us an appropriate form for registration of the exchange notes under the Securities Act.

        We expressly reserve the right at any time or at various times to extend the period of time during which the exchange offer is open. Consequently, we may delay acceptance of any outstanding notes by giving oral or written notice of such extension to their holders. We will return any outstanding notes that we do not accept for exchange for any reason without expense to their tendering holder promptly after the expiration or termination of the exchange offer.

        We expressly reserve the right to amend or terminate the exchange offer and to reject for exchange any outstanding notes not previously accepted for exchange, upon the occurrence of any of the conditions of the exchange offer specified above. We will give oral or written notice of any extension, amendment, non-acceptance or termination to the holders of the outstanding notes as promptly as practicable. In the case of any extension, such notice will be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.

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        These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times prior to the expiration date in our sole discretion. If we fail at any time to exercise any of the foregoing rights, this failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that we may assert at any time or at various times prior to the expiration date.

        In addition, we will not accept for exchange any outstanding notes tendered, and will not issue exchange notes in exchange for any such outstanding notes, if at such time any stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture under the Trust Indenture Act of 1939, as amended.

Procedures for Tendering Outstanding Notes

        To tender your outstanding notes in the exchange offer, you must comply with either of the following:

    •
    complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal, have the signature(s) on the letter of transmittal guaranteed if required by the letter of transmittal and mail or deliver such letter of transmittal or facsimile thereof to the exchange agent at the address set forth below under "—Exchange Agent—Notes" prior to the expiration date; or

    •
    comply with DTC's Automated Tender Offer Program procedures described below.

In addition, you will comply with either of the following conditions:

    •
    the exchange agent must receive certificates for outstanding notes along with the letter of transmittal prior to the expiration date;

    •
    the exchange agent must receive a timely confirmation of book-entry transfer of outstanding notes into the exchange agent's account at DTC according to the procedures for book-entry transfer described below or a properly transmitted agent's message prior to the expiration date; or

    •
    you must comply with the guaranteed delivery procedures described below.

        Your tender, if not withdrawn prior to the expiration date, constitutes an agreement between us and you upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal.

        The method of delivery of outstanding notes, letters of transmittal and all other required documents to the exchange agent is at your election and risk. We recommend that instead of delivery by mail, you use an overnight or hand delivery service, properly insured. In all cases, you should allow sufficient time to assure timely delivery to the exchange agent before the expiration date. You should not send letters of transmittal or certificates representing outstanding notes to us. You may request that your broker, dealer, commercial bank, trust company or nominee effect the above transactions for you.

        If you are a beneficial owner whose outstanding notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your outstanding notes, you should promptly contact the registered holder and instruct the registered holder to tender on your behalf. If you wish to tender the outstanding notes yourself, you must, prior to completing and executing the letter of transmittal and delivering your outstanding notes, either:

    •
    make appropriate arrangements to register ownership of the outstanding notes in your name; or

    •
    obtain a properly completed bond power from the registered holder of outstanding notes.

        The transfer of registered ownership may take considerable time and may not be able to be completed prior to the expiration date.

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        Signatures on the letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by a member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, a commercial bank or trust company having an office or correspondent in the United States or another "eligible guarantor institution" within the meaning of Rule 17A(d)-15 under the Exchange Act unless the outstanding notes surrendered for exchange are tendered:

    •
    by a registered holder of the outstanding notes who has not completed the box entitled "Special Registration Instructions" or "Special Delivery Instructions" on the letter of transmittal; or

    •
    for the account of an eligible guarantor institution.

        If the letter of transmittal is signed by a person other than the registered holder of any outstanding notes listed on the outstanding notes, such outstanding notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder's name appears on the outstanding notes and an eligible guarantor institution must guarantee the signature on the bond power.

        If the letter of transmittal or any certificates representing outstanding notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, those persons should indicate when signing in such capacity and, unless waived by us, they should also submit evidence satisfactory to us of their authority to so act.

        The exchange agent and DTC have confirmed that any financial institution that is a participant in DTC's system may use DTC's Automated Tender Offer Program to tender. Participants in the program may, instead of physically completing and signing the letter of transmittal and delivering it to the exchange agent, electronically transmit their acceptance of the exchange by causing DTC to transfer the outstanding notes to the exchange agent in accordance with DTC's Automated Tender Offer Program procedures for transfer. DTC will then send an agent's message to the exchange agent. The term "agent's message" means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation, which states that:

    •
    DTC has received an express acknowledgment from a participant in its Automated Tender Offer Program that is tendering outstanding notes that are the subject of the book-entry confirmation;

    •
    the participant has received and agrees to be bound by the terms of the letter of transmittal, or in the case of an agent's message relating to guaranteed delivery, that such participant has received and agrees to be bound by the notice of guaranteed delivery; and

    •
    we may enforce that agreement against such participant.

        DTC is referred to herein as a "book-entry transfer facility."

Acceptance of Exchange Notes

        In all cases, we will promptly issue exchange notes for outstanding notes that we have accepted for exchange under the exchange offer only after the exchange agent timely receives:

    •
    outstanding notes or a timely book-entry confirmation of such outstanding notes into the exchange agent's account at the book-entry transfer facility; and

    •
    a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent's message.

        By tendering outstanding notes pursuant to the exchange offer, you will represent to us that, among other things:

    •
    you are not our "affiliate" within the meaning of Rule 405 under the Securities Act;

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    •
    you do not have an arrangement or understanding with any person or entity to participate in a distribution of the exchange notes in violation of the provisions of the Securities Act;

    •
    you are not engaged in, and do not intend to engage in, a distribution of the exchange notes in violation of the provisions of the Securities Act; and

    •
    you are acquiring the exchange notes in the ordinary course of your business.

        In addition, each broker-dealer that is to receive exchange notes for its own account in exchange for outstanding notes must represent that such outstanding notes were acquired by that broker-dealer as a result of market-making activities or other trading activities and must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the exchange notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. See "Plan of Distribution."

        We will interpret the terms and conditions of the exchange offer, including the letters of transmittal and the instructions to the letters of transmittal, and will resolve all questions as to the validity, form, eligibility, including time of receipt, and acceptance of outstanding notes tendered for exchange. Our determinations in this regard will be final and binding on all parties. We reserve the absolute right to reject any and all tenders of any particular outstanding notes not properly tendered or to not accept any particular outstanding notes if the acceptance might, in our or our counsel's judgment, be unlawful. We also reserve the absolute right to waive any defects or irregularities as to any particular outstanding notes prior to the expiration date.

        Unless waived, any defects or irregularities in connection with tenders of outstanding notes for exchange must be cured within such reasonable period of time as we determine. Neither we, the exchange agent nor any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of outstanding notes for exchange, nor will any of them incur any liability for any failure to give notification. Any outstanding notes received by the exchange agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder, unless otherwise provided in the letter of transmittal, promptly after the expiration date.

Book-Entry Delivery Procedures

        Promptly after the date of this prospectus, the exchange agent will establish an account with respect to the outstanding notes at DTC and, as the book-entry transfer facility, for purposes of the exchange offer. Any financial institution that is a participant in the book-entry transfer facility's system may make book-entry delivery of the outstanding notes by causing the book-entry transfer facility to transfer those outstanding notes into the exchange agent's account at the facility in accordance with the facility's procedures for such transfer. To be timely, book-entry delivery of outstanding notes requires receipt of a confirmation of a book-entry transfer, a "book-entry confirmation," prior to the expiration date. In addition, although delivery of outstanding notes may be effected through book-entry transfer into the exchange agent's account at the book-entry transfer facility, the letter of transmittal or a manually signed facsimile thereof, together with any required signature guarantees and any other required documents, or an "agent's message," as defined below, in connection with a book-entry transfer, must, in any case, be delivered or transmitted to and received by the exchange agent at its address set forth on the cover page of the letter of transmittal prior to the expiration date to receive exchange notes for tendered outstanding notes, or the guaranteed delivery procedures described below must be complied with. Tender will not be deemed made until such documents are received by the exchange agent. Delivery of documents to the book-entry transfer facility does not constitute delivery to the exchange agent.

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        Holders of outstanding notes who are unable to deliver confirmation of the book-entry tender of their outstanding notes into the exchange agent's account at the book-entry transfer facility or all other documents required by the letter of transmittal to the exchange agent on or prior to the expiration date must tender their outstanding notes according to the guaranteed delivery procedures described below.

Guaranteed Delivery Procedures

        If you wish to tender your outstanding notes but your outstanding notes are not immediately available or you cannot deliver your outstanding notes, the letter of transmittal or any other required documents to the exchange agent or comply with the procedures under DTC's Automatic Tender Offer Program in the case of outstanding notes, prior to the expiration date, you may still tender if:

    •
    the tender is made through an eligible guarantor institution;

    •
    prior to the expiration date, the exchange agent receives from such eligible guarantor institution either a properly completed and duly executed notice of guaranteed delivery, by facsimile transmission, mail or hand delivery or a properly transmitted agent's message and notice of guaranteed delivery, that (1) sets forth your name and address, the certificate number(s) of such outstanding notes and the principal amount of outstanding notes tendered; (2) states that the tender is being made thereby; and (3) guarantees that, within three New York Stock Exchange trading days after the expiration date, the letter of transmittal, or facsimile thereof, together with the outstanding notes or a book-entry confirmation, and any other documents required by the letter of transmittal, will be deposited by the eligible guarantor institution with the exchange agent; and

    •
    the exchange agent receives the properly completed and executed letter of transmittal or facsimile thereof, as well as certificate(s) representing all tendered outstanding notes in proper form for transfer or a book-entry confirmation of transfer of the outstanding notes into the exchange agent's account at DTC and all other documents required by the letter of transmittal within three New York Stock Exchange trading days after the expiration date.

        Upon request, the exchange agent will send to you a notice of guaranteed delivery if you wish to tender your outstanding notes according to the guaranteed delivery procedures.

Withdrawal Rights

        Except as otherwise provided in this prospectus, you may withdraw your tender of outstanding notes at any time prior to 5:00 p.m., New York City time, on the expiration date.

        For a withdrawal to be effective:

    •
    the exchange agent must receive a written notice, which may be by facsimile or letter, of withdrawal at its address set forth below under "—Exchange Agent;" or

    •
    you must comply with the appropriate procedures of DTC's Automated Tender Offer Program system.

        Any notice of withdrawal must:

    •
    specify the name of the person who tendered the outstanding notes to be withdrawn;

    •
    identify the outstanding notes to be withdrawn, including the certificate numbers and principal amount of the outstanding notes; and

    •
    where certificates for outstanding notes have been transmitted, specify the name in which such outstanding notes were registered, if different from that of the withdrawing holder.

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If certificates for outstanding notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, you must also submit:

    •
    the serial numbers of the particular certificates to be withdrawn; and

    •
    a signed notice of withdrawal with signatures guaranteed by an eligible institution unless you are an eligible guarantor institution.

        If outstanding notes have been tendered pursuant to the procedures for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn outstanding notes and otherwise comply with the procedures of the facility. We will determine all questions as to the validity, form, and eligibility, including time of receipt of notices of withdrawal, and our determination will be final and binding on all parties. Any outstanding notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any outstanding notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder, without cost to the holder, or, in the case of book-entry transfer, the outstanding notes will be credited to an account at the book-entry transfer facility, promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn outstanding notes may be retendered by following the procedures described under "—Procedures for Tendering Outstanding Notes" above at any time on or prior to the expiration date.

Exchange Agent

        Wilmington Trust FSB has been appointed as the exchange agent for the exchange offer. Wilmington Trust FSB also acts as trustee under the indenture governing the notes. You should direct all executed letters of transmittal and all questions and requests for assistance, requests for additional copies of this prospectus or of the letters of transmittal and requests for notices of guaranteed delivery to the exchange agent addressed as follows:

By Mail, Hand or Overnight Delivery:

  

By Facsimile:

Wilmington Trust FSB

  

(302) 636-4139

c/o Wilmington Trust Company

    

Corporate Capital Markets

  

For Information or Confirmation by Telephone:

Rodney Square North

  

Sam Hamed

1100 North Market Street

  

(302) 636-6181

Wilmington, Delaware 19890-1626

    

        Note:    Delivery of this instrument to an address other than as set forth above or transmission of instructions other than as set forth above will not constitute a valid delivery.

        If you deliver the letter of transmittal to an address other than the one set forth above or transmit instructions via facsimile other than to the facsimile number set forth above, that delivery or those instructions will not be effective.

Fees and Expenses

        The registration rights agreement provides that we will bear all expenses in connection with the performance of our obligations relating to the registration of the exchange notes and the conduct of the exchange offer. These expenses include registration and filing fees, accounting and legal fees and printing costs, among others. We will pay the exchange agent reasonable and customary fees for its services and reasonable out-of-pocket expenses. We will also reimburse brokerage houses and other custodians, nominees and fiduciaries for customary mailing and handling expenses incurred by them in

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forwarding this prospectus and related documents to their clients that are holders of outstanding notes and for handling or tendering for such clients.

        We have not retained any dealer-manager in connection with the exchange offer and will not pay any fee or commission to any broker, dealer, nominee or other person, other than the exchange agent, for soliciting tenders of outstanding notes pursuant to the exchange offer.

Accounting Treatment

        We will record the exchange notes in our accounting records at the same carrying value as the outstanding notes, which is the aggregate principal amount as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon the consummation of the exchange offer.

Transfer Taxes

        We will pay all transfer taxes, if any, applicable to the exchanges of outstanding notes under the exchange offer. The tendering holder, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if:

    •
    certificates representing outstanding notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of outstanding notes tendered;

    •
    tendered outstanding notes are registered in the name of any person other than the person signing the letter of transmittal; or

    •
    a transfer tax is imposed for any reason other than the exchange of outstanding notes under the exchange offer.

        If satisfactory evidence of payment of such taxes is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed to that tendering holder.

        Holders who tender their outstanding notes for exchange will not be required to pay any transfer taxes. However, holders who instruct us to register exchange notes in the name of, or request that outstanding notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder will be required to pay any applicable transfer tax.

Consequences of Failure to Exchange

        If you do not exchange your outstanding notes for exchange notes under the exchange offer, your outstanding notes will remain subject to the restrictions on transfer of such outstanding notes:

    •
    as set forth in the legend printed on the outstanding notes as a consequence of the issuance of the outstanding notes pursuant to the exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws; and

    •
    as otherwise set forth in the prospectus distributed in connection with the private offering of the outstanding notes.

        In general, you may not offer or sell your outstanding notes unless they are registered under the Securities Act or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the outstanding notes under the Securities Act.

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Other

        Participating in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.

        We may in the future seek to acquire untendered outstanding notes in open market or privately negotiated transactions through subsequent exchange offers or otherwise. We have no present plans to acquire any outstanding notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered outstanding notes.

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DESCRIPTION OF NOTES

General

        You can find the definitions of certain terms used in this description under the subheading "—Certain Definitions." In this description, the word "Company" refers only to ClubCorp Club Operations, Inc. (and its successors under the Indenture) and not to any of its subsidiaries.

        On November 30, 2010 (the "Issue Date"), the Issuer issued $415,000,000 aggregate principal amount of 10% senior secured notes due 2018. For purposes of this description, the "Notes" refers to these outstanding notes and the Exchange Notes to be issued pursuant to the Exchange Offer to which this prospectus relates, as well as any Additional Notes, as defined below. The outstanding notes were, and the Exchange Notes will be, issued under an indenture dated as of the Issue Date (the "Indenture") among the Issuer, the Guarantors and Wilmington Trust FSB, as trustee (the "Trustee"). The Notes were issued in a private transaction that is not subject to the registration requirements of the Securities Act. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to specific provisions of the Trust Indenture Act.

        The following description is only a summary of the material provisions of the Notes and the Indenture, does not purport to be complete and is qualified in its entirety by reference to the provisions of the Notes and the Indenture, including the definitions therein of certain terms used below. We urge you to read the Notes and the Indenture because they, not this description, define your rights as Holders of the Notes. Copies of the Indenture and the Notes are available as set forth below under the caption "—Additional Information." Certain defined terms used in this description but not defined below under "—Certain Definitions" have the meanings assigned to them in the Indenture.

        The outstanding notes and the Exchange Notes will constitute a single series of debt securities under the Indenture. If the Exchange Offer is consummated, holders of outstanding notes who do not exchange their outstanding notes in the Exchange Offer will vote together with the holders of the Exchange Notes for all relevant purposes under the Indenture. Accordingly, when determining whether the required holders have given notice, consent or waiver or taken any other action permitted under the Indenture, any outstanding notes that remain outstanding after the Exchange Offer will be aggregated with the Exchange Notes. All references herein to specified percentages in aggregate principal amount of notes outstanding shall be deemed to mean, at any time after the Exchange Offer is consummated, percentages in aggregate principal amount of outstanding notes and Exchange Notes outstanding.

Brief Description of Notes

        The Notes:

    •
    are general, unsecured, senior obligations of the Company;

    •
    are effectively subordinated to any existing and future secured Indebtedness of the Company, including the Indebtedness of the Company under the Credit Agreement to the extent of the value of the collateral securing such secured Indebtedness;

    •
    are structurally subordinated to any existing and future Indebtedness, claims of holders of Preferred Stock and other liabilities, including trade payables, of Subsidiaries of the Company that do not guarantee the Notes;

    •
    are pari passu in right of payment with any existing and future unsubordinated Indebtedness of the Company;

    •
    are senior in right of payment to any future subordinated Indebtedness of the Company; and

    •
    are guaranteed by the Guarantors.

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Guarantees

        The Notes are guaranteed by each of the Company's Wholly Owned Restricted Subsidiaries that has guaranteed the Company's Indebtedness under the Credit Agreement. For the fiscal year ended December 28, 2010, subsidiaries which are not Guarantors had revenue of $46.0 million and operating income from continuing operations of $10.9 million. In the future, we may have additional subsidiaries which are not Guarantors of the Notes.

        The Guarantors, as primary obligors and not merely as sureties, jointly and severally, irrevocably and unconditionally, guarantee, on an unsecured senior basis, the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Company under the Indenture and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes, expenses, indemnification or otherwise, on the terms set forth in the Indenture by executing the Indenture.

        The Guarantors initially guaranteed the Notes and, in the future, each direct and indirect Restricted Subsidiary of the Company that guarantees Indebtedness of the Company under the Credit Agreement will, subject to certain exceptions, guarantee the Notes. Each of the Note Guarantees is a general, unsecured, senior obligation of each Guarantor, ranks equally in right of payment with all existing and future unsubordinated Indebtedness of such Guarantor (including such Guarantor's guarantee of the Credit Agreement), is effectively subordinated to all secured Indebtedness of such Guarantor (including such Guarantor's guarantee of the Credit Agreement), to the extent of the value of the collateral securing such secured Indebtedness, and will rank senior in right of payment to all future subordinated Indebtedness of such Guarantor. Each of the Note Guarantees is structurally subordinated to all existing and future Indebtedness, claims of holders of Preferred Stock and other liabilities of Subsidiaries of each Guarantor that do not provide a Note Guarantee.

        Not all of the Company's Subsidiaries have guaranteed the Notes. In the event of a bankruptcy, liquidation, reorganization or similar proceeding of any of these non-guarantor Subsidiaries, the non-guarantor Subsidiaries will pay the holders of their debt and their trade creditors before they will be able to distribute any of their assets to the Company or a Guarantor. As a result, all of the existing and future liabilities of our non-guarantor Subsidiaries, including any claims of trade creditors, is effectively senior to the Notes. The Indenture does not limit the amount of liabilities that are not considered Indebtedness which may be incurred by the Company or its Restricted Subsidiaries, including the non-Guarantors.

        As of the Issue Date, all of our subsidiaries were "Restricted Subsidiaries." However, under the circumstances described below under the subheading "—Certain Covenants—Designation of Restricted and Unrestricted Subsidiaries," we are permitted to designate certain of our subsidiaries as "Unrestricted Subsidiaries." Our Unrestricted Subsidiaries are not subject to any of the restrictive covenants in the Indenture. Our Unrestricted Subsidiaries have not guaranteed the Notes.

Principal, Maturity and Interest

        The Issuer issued $415.0 million in aggregate principal amount of Notes to the initial Holder on November 22, 2010 and will issue up to the same aggregate principal amount of Exchange Notes in this offering. The Indenture provides for the issuance by the Company of an unlimited amount of Notes, and the Company may issue additional notes (the "Additional Notes") from time to time. Any offering of Additional Notes is subject to the covenant described below under the caption "—Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock." The Notes and any Additional Notes subsequently issued under the Indenture would be treated as a single class for all purposes under the Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. The Company will issue Notes in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes will mature on December 1, 2018.

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        Interest on the Notes accrues at the rate of 10% per annum and is payable semi-annually in arrears on June 1 and December 1, commencing on June 1, 2011. The Company will make each interest payment to the Holders of record on the immediately preceding May 15 and November 15.

        Interest on the Notes accrues from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

Methods of Receiving Payments on the Notes

        If a Holder has given wire transfer instructions to the Company, the Company will pay all principal, interest and premium and Additional Interest, if any, on that Holder's Notes in accordance with those instructions. All other payments on Notes will be made at the office or agency of the Paying Agent and Registrar unless the Company elects to make interest payments by check mailed to the Holders at their addresses set forth in the register of Holders.

Paying Agent and Registrar for the Notes

        The Trustee currently acts as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders, and the Company or any of its Subsidiaries may act as Paying Agent or Registrar.

Transfer and Exchange

        A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company is not required to transfer or exchange any Note selected for redemption. Also, the Company is not required to transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed.

        The registered Holder of a Note will be treated as the owner of it for all purposes.

Note Guarantees

        The obligations of each Guarantor under its Note Guarantee is limited as necessary to prevent that Note Guarantee from constituting a fraudulent conveyance under applicable law. This provision may not, however, be effective to protect a Note Guarantee from being voided under fraudulent transfer law, or may reduce the applicable Guarantor's obligation to an amount that effectively makes its Note Guarantee worthless. If a Note Guarantee was rendered voidable, it could be subordinated by a court to all other indebtedness (including guarantees and other contingent liabilities) of the Guarantor, and, depending on the amount of such indebtedness, a Guarantor's liability on its Note Guarantee could be reduced to zero. See "Risk Factors—Risks related to the Exchange Offer, our Indebtedness and the Notes—Federal and state fraudulent transfer laws permit a court to void the notes and the guarantees, and, if that occurs, you may not receive any payments on the notes."

        Any Guarantor that makes a payment under its Note Guarantee will be entitled upon payment in full of all guaranteed obligations under the Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor's pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.

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        A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless:

            (1)   immediately after giving effect to that transaction, no Default or Event of Default exists; and

            (2)   either:

              (a)   the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger is a corporation, limited liability company, partnership, limited partnership, trust or other entity organized or existing under the laws of the United States, any state thereof or the District of Columbia and assumes all the obligations of that Guarantor under the Indenture, its Note Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture; or

              (b)   such sale or other disposition complies with the "Asset Sales" provisions of the Indenture, including the application of the Net Proceeds therefrom.

        The Note Guarantee of a Guarantor will be automatically and unconditionally released and discharged:

            (1)   in connection with any sale of all of the Capital Stock of a Guarantor to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary of the Company, if the sale of all such Capital Stock of that Guarantor complies with the "Asset Sales" provisions of the Indenture;

            (2)   if the Company designates any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary pursuant to the Indenture;

            (3)   in connection with the release or discharge of such Guarantor under the Credit Agreement or the guarantee which resulted in the creation of such Note Guarantee, except a release or discharge by or as a result of payment under such Guarantee (it being understood that a release subsequent to a contingent reinstatement is still a release); and

            (4)   in connection with the Company exercising the legal defeasance option or covenant defeasance option as described under "Legal Defeasance and Covenant Defeasance" or the Company's obligations under the Indenture being discharged in accordance with the terms of the Indenture.

Ranking

        The Notes rank equal in right of payment to all existing and future unsecured unsubordinated Indebtedness and senior in right of payment to all subordinated Indebtedness of the Company. The Notes, however, are effectively subordinated in right of payment to all of the Company's secured obligations (including the Indebtedness of the Company under the Credit Agreement) to the extent of the collateral securing such obligations. Additionally, the Notes are effectively subordinated to all existing and future Indebtedness, claims of holders of Preferred Stock and other liabilities, including trade payables, of the Company's Subsidiaries that are not Guarantors. The Note Guarantees rank equal in right of payment with all existing and future unsecured unsubordinated Indebtedness of the Guarantors and senior in right of payment to all subordinated Indebtedness of the Guarantors. In addition, the Note Guarantees are effectively subordinated to all of the Guarantors' secured obligations (including such Guarantor's guarantee of the Credit Agreement) to the extent of the value of the collateral securing such obligations.

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        As of December 28, 2010, ClubCorp Club Operations, Inc., and its guarantor subsidiaries, had approximately $745.1 million of indebtedness and our non-guarantor subsidiaries had $38.2 million of indebtedness, of which $32.0 million was non-recourse to us.

Optional Redemption

        Except as set forth below, the Notes are not redeemable at the Company's option prior to December 1, 2014.

        At any time prior to December 1, 2013, the Company may redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 110% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date, with the net cash proceeds of one or more Equity Offerings; provided that:

            (1)   at least 65% of the aggregate principal amount of Notes originally issued under the Indenture remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Company and its Subsidiaries); and

            (2)   the redemption must occur within 90 days of the date of the closing of such Equity Offering.

        In addition, at any time prior to December 1, 2014, the Company may redeem all or any portion of the Notes, at once or over time, upon not less than 30 nor more than 60 days' notice at a redemption price equal to the sum of (i) the principal amount thereof, plus (ii) accrued and unpaid interest and Additional Interest, if any, to the applicable date of redemption, plus (iii) the Make-Whole Premium.

        On and after December 1, 2014, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if any, thereon, to the applicable redemption date, if redeemed during the twelve-month period beginning on December 1 of the years indicated below:

Year
  Percentage  

2014

     105.000 %

2015

     102.500 %

2016 and thereafter

     100.000 %

        Notice of redemption upon any Equity Offering or in connection with a transaction (or series of related transactions) that constitute a Change of Control may, at the Company's discretion, be given prior to completion thereof and be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering or Change of Control.

Mandatory Redemption

        The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. However, under certain circumstances, the Company may be required to offer to purchase Notes as described under the caption "Repurchase at the Option of Holders." We may at any time and from time to time purchase Notes in the open market or otherwise.

Repurchase at the Option of Holders

    Change of Control

        If a Change of Control occurs, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof, provided that no Note of

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$2,000 or less shall be redeemed in part) of that Holder's Notes pursuant to a Change of Control Offer on the terms set forth in the Indenture. In the Change of Control Offer, the Company will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if any, thereon, to the date of purchase. Within 30 days following any Change of Control, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment Date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by the Indenture and described in such notice. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of the Indenture by virtue of such conflict.

        On or prior to the Change of Control Payment Date, the Company will, to the extent lawful:

            (1)   accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;

            (2)   deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and

            (3)   deliver or cause to be delivered to the Trustee the Notes so accepted together with an officer's certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.

        The Paying Agent will promptly send to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.

        The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

        The Credit Agreement prohibits the Company from purchasing any Notes, and also provides that certain change of control events with respect to the Company would constitute a default thereunder (including a Change of Control under the Indenture). Any future credit agreements or other similar agreements to which the Company becomes a party may contain similar restrictions and provisions. In the event a Change of Control occurs at a time when the Company is prohibited from purchasing Notes, the Company could seek the consent of its lenders to the purchase of Notes or could attempt to refinance the borrowings that contain such prohibition. If the Company does not obtain such a consent or repay such borrowings, the Company will remain prohibited from purchasing Notes. In such case, the Company's failure to purchase tendered Notes would constitute an Event of Default under the Indenture which could, in turn, constitute a default under such other agreements.

        The provisions described above that require the Company to make a Change of Control Offer following a Change of Control will be applicable regardless of whether any other provisions of the Indenture are applicable. Except as described above with respect to a Change of Control, the Indenture does not contain provisions that permit the Holders of the Notes to require that the Company repurchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction.

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        The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.

        Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer; provided that after the first public offering of the Company's common stock or the common stock of any direct or indirect parent company of the Company after the Issue Date, such definitive agreement shall not be required.

        The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the properties or assets of the Company and its Subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of Notes to require the Company to repurchase such Notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of the Company and its Subsidiaries taken as a whole to another Person or group may be uncertain.

        We cannot assure you that if a Change of Control occurs we will have sufficient funds to make any required repurchases of Notes under a Change of Control Offer.

    Asset Sales

        The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

            (1)   the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value as determined in good faith by the Company's Board of Directors of the assets sold or otherwise disposed of; and

            (2)   at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Replacement Assets or a combination of both; provided that the amount of:

              (a)   any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, or in footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company's or such Restricted Subsidiary's balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written agreement that releases the Company or such Restricted Subsidiary from further liability;

              (b)   any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days following the consummation of such Asset Sale; and

              (c)   any Designated Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together

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      with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at the time outstanding, not to exceed the greater of $20.0 million and 1.5% of Total Assets, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash for purposes of this provision and for no other purpose.

        Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option:

            (1)   to repay Priority Senior Obligations and, in the case such Priority Senior Obligations are revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;

            (2)   to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;

            (3)   to make a capital expenditure in or that is used or useful in a Permitted Business; or

            (4)   to acquire other long-term assets in or that are used or useful in a Permitted Business;

provided that, in the case of clauses (2), (3) or (4) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company, or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an "Acceptable Commitment"); provided, further, that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.

        Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings, including under the Credit Agreement, or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture.

        Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company or agent for such other pari passu Indebtedness shall select such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.

        The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of the Indenture by virtue of such compliance.

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        The Credit Agreement prohibits the Company from purchasing any Notes, and also provides that certain asset sale events with respect to the Company would constitute a default under these agreements. Any future credit agreements or other similar agreements to which the Company becomes a party may contain similar restrictions and provisions. In the event an Asset Sale occurs at a time when the Company is prohibited from purchasing Notes, the Company could seek the consent of its senior lenders to the purchase of Notes or could attempt to refinance the borrowings that contain such prohibition. If the Company does not obtain such a consent or repay such borrowings, the Company will remain prohibited from purchasing Notes. In such case, the Company's failure to purchase tendered Notes would constitute an Event of Default under the Indenture which could, in turn, constitute a default under such other agreements.

Selection and Notice

        If less than all of the Notes are to be purchased or redeemed at any time, the Trustee will select Notes for purchase or redemption as follows:

            (1)   if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or

            (2)   if the Notes are not so listed, on a pro rata basis, by lot or by such other method in accordance with the procedures of DTC.

        No Notes of $2,000 or less shall be purchased or redeemed in part. Notices of purchase or redemption shall be mailed by first class mail at least 30 but not more than 60 days before the purchase or redemption date to each Holder of Notes to be purchased or redeemed at its registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.

        If any Note is to be purchased or redeemed in part only, the notice of purchase or redemption that relates to that Note shall state the portion of the principal amount thereof to be purchased or redeemed. A new Note in principal amount equal to the unpurchased or unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on Notes or portions of them called for redemption.

Certain Covenants

    Restricted Payments

        The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

            (1)   declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) (other than (a) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or (b) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities);

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            (2)   purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company;

            (3)   make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value, in each case, prior to any scheduled payment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (a) Indebtedness permitted under clause (7) of the second paragraph of the covenant described under "—Incurrence of Indebtedness and Issuance of Preferred Stock;" or (b) the purchase, repurchase or other acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase or acquisition; or

            (4)   make any Restricted Investment (all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as "Restricted Payments"),

unless, at the time of and after giving effect to such Restricted Payment:

            (1)   no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and

            (2)   the Company would, after giving effect to such transaction on a pro forma basis, (a) have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described under "—Incurrence of Indebtedness and Issuance of Preferred Stock" and (b) have had a Leverage Ratio of not greater than 4.50 to 1.00; and

            (3)   such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (2) through (13) of the next succeeding paragraph), is less than the sum, without duplication, of:

              (a)   100% of the Adjusted EBITDA of the Company for the period (taken as one accounting period) from the beginning of the first day of the fiscal quarter commencing after the Issue Date to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment less 1.75 times Consolidated Interest Expense of the Company for the same period, plus

              (b)   100% of the aggregate net cash proceeds, and the fair market value (as determined in good faith by the Company's Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property received by the Company since immediately after the Issue Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (16)(a) of the second paragraph of the covenant described under "—Incurrence of Indebtedness and Issuance of Preferred Stock") from the issue or sale of:

                  (i)  (A) Equity Interests of the Company, including Treasury Capital Stock (as defined below), but excluding cash proceeds and the fair market value (as determined in good faith by the Company's Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property received from the sale of:

                  (x)   Equity Interests to members of management, directors or consultants of the Company, any direct or indirect parent company of the Company and the Company's Subsidiaries after the Issue Date to the extent such amounts have been applied to

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          Restricted Payments made in accordance with clause (9) of the next succeeding paragraph; and

                  (y)   Designated Preferred Stock,

        and (B) to the extent such net cash proceeds are actually contributed to the Company, Equity Interests of the Company's direct or indirect parent companies (excluding contributions of the proceeds from the sale of Designated Preferred Stock of such companies or contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (9) of the next succeeding paragraph); or

                 (ii)  debt securities of the Company that have been converted into or exchanged for such Equity Interests of the Company;

      provided, however, that this clause (b) shall not include the proceeds from (W) Refunding Capital Stock (as defined below), (X) Equity Interests or convertible debt securities of the Company sold to a Restricted Subsidiary, as the case may be, (Y) Disqualified Stock or debt securities that have been converted into Disqualified Stock or (Z) Excluded Contributions; plus

              (c)   100% of the aggregate amount of cash and the fair market value (as determined in good faith by the Company's Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property contributed to the capital of the Company following the Issue Date (other than net cash proceeds to the extent such net cash proceeds (i) have been used to incur Indebtedness, Disqualified Stock or Preferred Stock, pursuant to clause (16)(a) of the second paragraph of the covenant described under "—Incurrence of Indebtedness and Issuance of Preferred Stock," (ii) are contributed by a Restricted Subsidiary or (iii) constitute Excluded Contributions); plus

              (d)   100% of the aggregate amount received in cash and the fair market value (as determined in good faith by the Company's Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property received by means of:

                  (i)  the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Company or its Restricted Subsidiaries, in each case after the Issue Date; or

                 (ii)  the sale (other than to the Company or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent such Investment constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary after the Issue Date; plus

              (e)   in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such Unrestricted Subsidiary (as determined by the Company's Board of Directors in good faith or, if such fair market value exceeds $20.0 million, in writing by an Independent Financial Advisor) at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary other than to the extent such Investment constituted a Permitted Investment.

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        The foregoing provisions will not prohibit the following (provided that with respect to clauses (8), (11) and (12) below, no Default or Event of Default shall have occurred and be continuing):

            (1)   the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of the Indenture;

            (2)   the redemption, repurchase, retirement or other acquisition of any Equity Interests ("Treasury Capital Stock") or Subordinated Indebtedness of the Company or any Equity Interests of any direct or indirect parent company of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent company of the Company to the extent contributed to the Company (in each case, other than any Disqualified Stock) ("Refunding Capital Stock") and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clause (5) of this paragraph, the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent company of the Company) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;

            (3)   the defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;

            (4)   the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary, in each case issued in accordance with the covenant described under "—Incurrence of Indebtedness and Issuance of Preferred Stock" to the extent such dividends are included in the definition of "Fixed Charges;"

            (5)   (a) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Company after the Issue Date;

              (b)   the declaration and payment of dividends to a direct or indirect parent company of the Company, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such parent corporation issued after the Issue Date, provided that the amount of dividends paid pursuant to this clause (b) shall not exceed the aggregate amount of cash actually contributed to the Company from the sale of such Designated Preferred Stock; or

              (c)   the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock in excess of the dividends declarable and payable thereon pursuant to clause (2) of this paragraph;

    provided, however, in the case of each of (a) and (c) of this clause (5), that for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock or the declaration of such dividends on Refunding Capital Stock that is Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis, the Company and its Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;

            (6)   payments made or expected to be made by the Company or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise of Equity Interests by any future, present or former employee, director, officer, member of management or consultant (or their

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    respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Restricted Subsidiary or any direct or indirect parent company of the Company and any repurchases of Equity Interests in consideration of such payments deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants or required withholding or similar taxes;

            (7)   Restricted Payments that are made with Excluded Contributions;

            (8)   the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to the provisions similar to those described under "Repurchase at the Option of Holders—Change of Control" and "Repurchase at the Option of Holders—Asset Sales;" provided that all Notes validly tendered by Holders in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed, acquired or retired for value;

            (9)   a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Company or any of its direct or indirect parent companies held by any future, present or former employee, director or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate Restricted Payments made under this clause (9) do not exceed $2.5 million in any calendar year (which shall increase to $5.0 million in any calendar year subsequent to the consummation of an underwritten public Equity Offering by the Company or any direct or indirect parent company of the Company); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:

              (a)   the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company and, to the extent contributed to the Company, Equity Interests of any of the Company's direct or indirect parent companies, in each case to any future, present or former employee, director or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (3) of the preceding paragraph; plus

              (b)   the cash proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries (or any direct or indirect parent company to the extent contributed to common equity of the Company and not otherwise applied to make Restricted Payments by virtue of clause (3) of the preceding paragraph) after the Issue Date; less

              (c)   the amount of any Restricted Payments previously made with the cash proceeds described in clauses (a) and (b) of this clause (9);

            (10) the declaration and payment of dividends or distributions by the Company to, or the making of loans to, any direct or indirect parent company of the Company in amounts required for any direct or indirect parent company of the Company to pay, in each case without duplication:

              (a)   franchise and excise taxes and other fees, taxes and expenses required to maintain their corporate existence;

              (b)   foreign, federal, state and local income and similar taxes, to the extent such income taxes are attributable to the income of the Company and its Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted

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      Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Company and its Restricted Subsidiaries would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such parent company;

              (c)   customary salary, bonus and other benefits payable to employees, directors, officers and managers of any direct or indirect parent company of the Company to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;

              (d)   general corporate operating and overhead costs and expenses of any direct or indirect parent company of the Company to the extent such costs and expenses are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;

              (e)   fees and expenses other than to Affiliates of the Company related to any unsuccessful equity or debt offering of such parent company;

              (f)    amounts payable pursuant to the Management Agreement (including any amendment thereto so long as any such amendment is not materially disadvantageous in the good faith judgment of the Board of Directors of the Company to the Holders when taken as a whole, as compared to the Management Agreement as in effect on the Issue Date), solely to the extent such amounts are not paid directly by the Company or its Subsidiaries;

              (g)   cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Company or any direct or indirect parent company of the Company; and

              (h)   to finance Investments that would otherwise permitted to be made pursuant to this covenant if made by the Company; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such direct or indirect parent company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the capital of the Company or one of its Restricted Subsidiaries or (2) the merger or amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by the covenant "—Merger, Consolidation or Sale of All or Substantially All Assets" below) in order to consummate such Investment, (C) such direct or indirect parent company and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with the Indenture, (D) any property received by the Company shall not increase amounts available for Restricted Payments pursuant to clause (3) of the preceding paragraph and (E) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this covenant (other than pursuant to clause (7) hereof) or pursuant to the definition of "Permitted Investments" (other than clause (5) thereof);

            (11) the distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Company or a Restricted Subsidiary by Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents);

            (12) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (12) not to exceed $35.0 million; and

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            (13) any Restricted Payment made in connection with the Reorganization Transactions.

        Notwithstanding the immediately prior two paragraphs, prior to the second anniversary of the Issue Date, none of the Company or any of its Restricted Subsidiaries shall (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests held by (a) the Investors or (b) a direct or indirect parent company of the Company, the proceeds of which will be used to fund the payment of a dividend or other distribution to the Investors, or (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company, in each case, held by the Investors; provided that following the consummation of an underwritten public Equity Offering by the Company or any direct or indirect parent company of the Company, which generates gross proceeds to the issuer and any selling stockholders of at least $125.0 million, the Company shall be permitted to make any Restricted Payment in compliance with this covenant.

        The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment (as determined by the Company's Board of Directors in good faith or, if the fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor).

    Incurrence of Indebtedness and Issuance of Preferred Stock

        The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, "incur" and collectively, an "incurrence") with respect to any Indebtedness (including Acquired Debt) and the Company will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt), issue shares of Disqualified Stock and issue shares of Preferred Stock, if the Fixed Charge Coverage Ratio on a consolidated basis for the Company and its Restricted Subsidiaries' most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that Restricted Subsidiaries that are not Guarantors may not incur Indebtedness or Disqualified Stock or Preferred Stock pursuant to the Fixed Charge Coverage Ratio test under this first paragraph of the covenant if, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the net proceeds therefrom), more than an aggregate of $40.0 million of Indebtedness or Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors would be outstanding pursuant to the Fixed Charge Coverage Ratio test under this first paragraph and clauses (15), (16)(b) and (17) below at such time.

        The first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):

            (1)   the incurrence of Indebtedness pursuant to Credit Facilities by the Company (and the incurrence by the Guarantors of guarantees thereof) and the issuance and creation of letters of credit and bankers' acceptances thereunder (with letters of credit and bankers' acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount of $400.0 million, minus, in each case, the amount of permanent repayments of

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    Indebtedness under Credit Facilities incurred pursuant to this clause (1) with the Net Proceeds from Asset Sales pursuant to clause (1) of the second paragraph of the covenant described under "Asset Sales;"

            (2)   the incurrence by the Company and any Restricted Subsidiary of the Company of the Existing Indebtedness (other than Indebtedness under clauses (1) and (3) and, for purposes of clause (6) below, (8) and (16));

            (3)   the incurrence by the Company and any Restricted Subsidiary of Indebtedness represented by the Notes and the related Note Guarantees outstanding on the Issue Date and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;

            (4)   the incurrence by the Company or any Restricted Subsidiary of Indebtedness (including Capital Lease Obligations), Disqualified Stock and Preferred Stock, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at any time outstanding which, taken together with all other Indebtedness incurred pursuant to this clause (4) and all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, Disqualified Stock and Preferred Stock, does not exceed $25.0 million;

            (5)   the incurrence by the Company or any Restricted Subsidiary of Indebtedness (including Capital Lease Obligations), Disqualified Stock and Preferred Stock, in each case, incurred for the purpose of financing all or any part of the purchase price for golf carts or golf course maintenance equipment, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness (including Capital Lease Obligations), Disqualified Stock or Preferred Stock incurred pursuant to this clause (5), not to exceed $300,000 at any time outstanding for each 18-hole equivalent golf course operated by the Company or any such Restricted Subsidiary;

            (6)   the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness), Disqualified Stock and Preferred Stock that was permitted by the Indenture to be incurred under the first paragraph of this covenant or clauses (2), (3), (4), (5), (6), (15) and (17) of this paragraph;

            (7)   the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:

              (a)   if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and

              (b)   (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (7);

            (8)   the incurrence, in the ordinary course of business and not for speculative purposes, by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the

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    purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding or for the purpose of protecting the Company or any of its Restricted Subsidiaries against fluctuations in foreign currency exchange rates;

            (9)   the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this covenant;

            (10) refundable membership deposits or initiation fees incurred in the ordinary course of business;

            (11) the incurrence by the Company or any Restricted Subsidiary of (a) obligations under letters of credit or similar instruments (including reimbursement obligations with respect thereto) securing obligations (other than Indebtedness) entered into in the ordinary course of business of such Person to the extent such letters of credit or similar instruments are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than 30 days following receipt by such Person of a demand for reimbursement; (b) performance, bid, surety or appeal bonds and completion guarantees provided in the ordinary course of business or (c) agreements providing for indemnification, adjustment of purchase price or similar obligations, or guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary of the Company in connection with such disposition;

            (12) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of Equity Interests or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Company or another of its Restricted Subsidiaries) shall be deemed, in each case, to be an issuance of such shares of Preferred Stock not permitted by this clause;

            (13) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of its incurrence;

            (14) Indebtedness consisting of Indebtedness issued by the Company or any of its Restricted Subsidiaries to future, present or former employees, directors, officers, managers and consultants thereof, their respective Controlled Investment Affiliates or Immediate Family Members, in each case to finance the purchase or redemption of Equity Interests of the Company or any direct or indirect parent company of the Company to the extent described in clause (9) of the second paragraph under "—Restricted Payments;"

            (15) Indebtedness, Disqualified Stock or Preferred Stock of (a) the Company or a Restricted Subsidiary incurred to finance an acquisition or (b) Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of the Indenture; provided that after giving effect to such acquisition or merger, either

              (a)   the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first sentence of this covenant, or

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              (b)   the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries is greater than immediately prior to such acquisition or merger;

    provided, however, that on a pro forma basis, together with amounts incurred and outstanding pursuant to the second proviso to the first paragraph of this covenant, clause (16)(b) and clause (17) of this covenant, no more than $40.0 million of Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding and incurred by Restricted Subsidiaries that are not Guarantors pursuant to this clause (15) shall be incurred and outstanding;

            (16)(a)  Indebtedness or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary equal to the net cash proceeds received by the Company since immediately after the Issue Date from the issue or sale of Equity Interests of the Company or cash contributed to the capital of the Company (in each case, other than Excluded Contributions or proceeds of Disqualified Stock or sales of Equity Interests to the Company or any of its Subsidiaries) as determined in accordance with clauses (3)(b) and (3)(c) of the first paragraph of "—Restricted Payments" to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to the second paragraph of "—Restricted Payments" or to make Permitted Investments (other than Permitted Investments specified in clauses (1) and (3) of the definition thereof) and (b) Indebtedness or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to this clause (16)(b), does not at any one time outstanding exceed $45.0 million; provided, however, that on a pro forma basis, together with any amounts incurred and outstanding by Restricted Subsidiaries that are not Guarantors pursuant to the second proviso to the first paragraph of this covenant, clause (15) and clause (17) of this covenant, no more than $40.0 million of Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding and incurred pursuant to this clause (16)(b) shall be incurred by Restricted Subsidiaries that are not Guarantors (it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (16)(b) shall cease to be deemed incurred or outstanding for purposes of this clause (16)(b) but shall be deemed incurred for the purposes of the first paragraph of this covenant from and after the first date on which the Company or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under the first paragraph of this covenant without reliance on this clause (16)(b));

            (17) Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary incurred to finance or assumed in connection with an acquisition in a principal amount not to exceed $35.0 million in the aggregate at any one time outstanding together with all other Indebtedness, Disqualified Stock and/or Preferred Stock issued under this clause (17) (it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (17) shall cease to be deemed incurred or outstanding for purposes of this clause (17) but shall be deemed incurred for the purposes of the first paragraph of this covenant from and after the first date on which such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under the first paragraph of this covenant without reliance on this clause (17)); provided, however, that on a pro forma basis, together with any amounts incurred and outstanding by Restricted Subsidiaries that are not Guarantors pursuant to the second proviso to the first paragraph of this covenant, clause (15) and clause (16)(b) of this covenant, no more than $40.0 million of Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding and incurred pursuant to this clause (17) shall be incurred by Restricted Subsidiaries that are not Guarantors (it being understood that any Indebtedness, Disqualified

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    Stock or Preferred Stock incurred pursuant to this clause (17) shall cease to be deemed incurred or outstanding for purposes of this clause (17) but shall be deemed incurred for the purposes of the first paragraph of this covenant from and after the first date on which the Company or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under the first paragraph of this covenant without reliance on this clause (17); and

            (18) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements in each case, incurred in the ordinary course of business.

        For purposes of determining compliance with this "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant:

            (A)  in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (18) above, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, and from time to time may reclassify such item of Indebtedness, in any manner that complies with this covenant. Indebtedness under Credit Facilities outstanding on the Issue Date shall be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt; and

            (B)  at the time of incurrence, the Company will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in the first and second paragraphs of this covenant.

        Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this covenant.

        For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency ex-change rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the principal amount of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.

        The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.

        Neither the Company nor any Guarantor will incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes or Note Guarantee of such Guarantor on at least substantially identical terms.

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        The Indenture will not treat (i) unsecured Indebtedness as subordinated or junior to Secured Indebtedness merely because it is unsecured or (ii) Senior Indebtedness as subordinated or junior to any other Senior Indebtedness merely because it has a junior priority with respect to the same collateral.

    Liens

        The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise cause or suffer to exist or become effective Liens (the "Initial Lien") of any kind against or upon any of their assets now owned or hereafter acquired, or upon any income or profits therefrom, securing Indebtedness or any related guarantee, other than Permitted Liens, without effectively providing that the Notes shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured.

        Any Lien created for the benefit of the Holders of the Notes pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.

    Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

        The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:

            (1)   pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;

            (2)   make loans or advances to the Company or any of its Restricted Subsidiaries; or

            (3)   transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

        However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:

            (1)   contractual encumbrances or restrictions, including Existing Indebtedness and the Credit Agreement, in each case as in effect on the date of the Indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, than those contained in such Existing Indebtedness and the Credit Agreement, as the case may be, as in effect on the date of the Indenture;

            (2)   the Indenture, the Notes and the Note Guarantees;

            (3)   applicable law or any applicable rule, regulation or order;

            (4)   any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired;

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            (5)   customary non-assignment provisions in, or provisions that restrict in a customary manner the transfer of any property or asset that is, a lease, contract or agreement entered into in the ordinary course of business and consistent with past practices;

            (6)   purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in clause (3) of the preceding paragraph;

            (7)   contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;

            (8)   Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

            (9)   Liens and Secured Indebtedness otherwise permitted to be incurred pursuant to the covenants of the Indenture that limit the right of the debtor to dispose of the assets securing such Indebtedness;

            (10) Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;

            (11) restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts entered into in the ordinary course of business;

            (12) not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Restricted Subsidiaries in any manner material to the Company or any of its Restricted Subsidiaries;

            (13) customary provisions in joint venture agreements or arrangements and other similar agreements entered into in the ordinary course of business;

            (14) Indebtedness of any Restricted Subsidiary of the Company or any agreement pursuant to which such Indebtedness was issued if (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (b) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith) and (c) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes;

            (15) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;

            (16) customary provisions contained in leases, sub-leases, licenses or sub-licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business; and

            (17) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of the first paragraph of this covenant imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) of the second paragraph of this

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    covenant; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

    Merger, Consolidation or Sale of All or Substantially All Assets

        The Company may not: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:

            (1)   either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made is a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia (such Person, as the case may be, being herein called the "Successor Company");

            (2)   the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under the Notes, the Indenture and the Registration Rights Agreement pursuant to supplemental indentures or other agreements in form satisfactory to the Trustee;

            (3)   immediately after such transaction no Default or Event of Default exists;

            (4)   the Company or the Successor Company (if other than the Company)will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable Four Quarter Period, (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described under "—Incurrence of Indebtedness and Issuance of Preferred Stock" or (b) the Fixed Charge Coverage Ratio would be greater than the Fixed Charge Coverage Ratio immediately prior to such transaction;

            (5)   each Guarantor, unless it is the other party to the transactions described above, in which case clause (1)(b) of the second succeeding paragraph shall apply, shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such Person's obligations under the Indenture, the Notes and the Registration Rights Agreement; and

            (6)   the Company shall have delivered to the Trustee an officer's certificate and an opinion of counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with the Indenture.

        The Successor Company will succeed to, and be substituted for the Company under the Indenture, the Note Guarantees and the Notes, as applicable. Notwithstanding the immediately preceding clauses (3) and (4),

            (1)   any Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Restricted Subsidiary, and

            (2)   the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.

        Subject to certain limitations described in the Indenture governing release of a Note Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor will, and the Company will not

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permit any Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:

            (1)(a)  such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of such Guarantor, as applicable, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such surviving Guarantor or such Person, as the case may be, being herein called the "Successor Person");

              (b)   the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under the Indenture and such Guarantor's related Note Guarantee pursuant to supplemental indentures or other agreements in form satisfactory to the Trustee;

              (c)   immediately after such transaction, no Default exists; and

              (d)   the Company shall have delivered to the Trustee an officer's certificate and an opinion of counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with the Indenture;

            (2)   the transaction is made in compliance with the first paragraph of the covenant described under "Repurchase at the Option of Holders—Asset Sales;" or

            (3)   such property or assets constitute Equity Interests of Restricted Subsidiaries that are not Guarantors, which Equity Interests are sold, assigned, transferred, leased, conveyed or otherwise disposed to Restricted Subsidiaries that are not Guarantors.

        Subject to certain limitations described in the Indenture, the Successor Person will succeed to, and be substituted for, such Guarantor under the Indenture and such Guarantor's Note Guarantee. Notwithstanding the foregoing, any Guarantor may (1) merge, amalgamate or consolidate with or into, wind up into or transfer all or part of its properties and assets to another Guarantor or the Company, (2) merge with an Affiliate of the Company solely for the purpose of reincorporating the Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof, (3) convert into a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor or (4) liquidate or dissolve or change its legal form if the Company determines in good faith that such action is in the best interests of the Company.

    Transactions with Affiliates

        The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an "Affiliate Transaction") involving aggregate payments or consideration in excess of $3.0 million, unless:

            (1)   such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person in an arms-length transaction; and

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            (2)   the Company delivers to the Trustee:

              (a)   with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a resolution of the Board of Directors set forth in an officer's certificate certifying that such Affiliate Transaction complies with this covenant and that such Affiliate Transaction has been approved by a majority of the Board of Directors (including a majority of the members of the Board of Directors that are disinterested in such transaction, if there are any directors who are so disinterested); and

              (b)   with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor.

        The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:

            (1)   transactions between or among the Company and/or its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction;

            (2)   any reasonable employment, compensation, benefit or indemnification arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business with directors, officers or employees and the payment of reasonable and customary fees paid to, and indemnities provided for the benefit of, former, current or future officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;

            (3)   transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm's-length basis;

            (4)   transactions in the ordinary course of business between the Company or any of its Restricted Subsidiaries and any Person in which the Company or any of its Restricted Subsidiaries owns any Equity Interest; provided (i) such transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated Person, (ii) such Person is an Affiliate of the Company or such Restricted Subsidiary solely as a result of the Company or such Restricted Subsidiary's ownership of the Equity Interests in such Person and (iii) no holder of Equity Interests in such Person are Affiliates of the Company or any of its Subsidiaries;

            (5)   Restricted Payments that are permitted by the provisions of the Indenture described above under the caption "—Restricted Payments;" and the definition of "Permitted Investments;"

            (6)   the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (6) to the extent that the terms of any such existing agreement together with all amendments thereto are not otherwise disadvantageous to the Holders when taken as a whole;

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            (7)   payments by the Company (and any direct or indirect parent company thereof) and its Subsidiaries pursuant to tax sharing agreements among the Company (and any such parent company) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;

            (8)   transactions with customers, clients, suppliers, contractors, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of the Indenture which are fair to the Company and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;

            (9)   the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Company to any direct or indirect parent company of the Company or to any Permitted Holder or to any employee, director, officer, manager, distributor or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;

            (10) payments to or from, and transactions with, any joint venture in the ordinary course of business (including, without limitation, any cash management activities related thereto);

            (11) any agreement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);

            (12) the payment of management, consulting, monitoring, transaction, advisory and other fees and related expenses (including indemnification and other similar amounts) pursuant to the Management Agreement (plus any unpaid management, consulting, monitoring, advisory and other fees and related expenses (including indemnification and similar amounts) accrued in any prior year) and the termination fees pursuant to the Management Agreement, or, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the Board of Directors of the Company to the Holders when taken as a whole, as compared to the Management Agreement as in effect on the Issue Date;

            (13) payments by the Company or any of its Restricted Subsidiaries to any of the Investors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors (including a majority of members of the Board of Directors that are disinterested in such transaction, if there are any directors who are so disinterested);

            (14) payments or loans (or cancellation of loans) to employees or consultants of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries and employment agreements, stock option plans and other similar arrangements with such employees or consultants which, in each case, are approved by the Company in good faith;

            (15) investments by the Investors in securities of the Company or any of its Restricted Subsidiaries so long as (i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment constitutes less than 5% of the proposed or outstanding issue amount of such class of securities; and

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            (16) any transaction or agreement between the Company or any of its Restricted Subsidiaries, on the one hand, and any Affiliates of the Company, on the other hand, in connection with the Reorganization Transactions.

    Designation of Restricted and Unrestricted Subsidiaries

        The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be a Restricted Investment made as of the time of such designation and that designation will only be permitted if such Investment would be permitted at that time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (1) such Indebtedness is permitted under the covenant described under "—Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock," calculated on a pro forma basis; and (2) no Default or Event of Default would be in existence following such designation.

        With respect to the designation of any Unrestricted Subsidiary that will constitute a Financing Unrestricted Subsidiary, (A) immediately after giving effect to such designation, the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries on a pro forma basis shall be equal to or greater than the Fixed Charge Coverage Ratio immediately prior to giving effect to such designation, (B) immediately after giving effect to such designation, the Company and its Restricted Subsidiaries shall be in compliance with clause (17) of the definition of "Permitted Investments," and (C) such Financing Unrestricted Subsidiary shall be designated solely in contemplation of a Disposition of the property or assets of, or an incurrence or issuance of Indebtedness by, such Financing Unrestricted Subsidiary and promptly, but in no event later than 30 days, after the effective date of the designation of each Financing Unrestricted Subsidiary, the Company shall make a prepayment of the Indebtedness under the Credit Agreement from the Net Proceeds resulting from such Disposition or from the net cash proceeds of such incurrence or issuance of Indebtedness in accordance with the terms of the Credit Agreement. For purposes of clause (B) above, the designation of a Restricted Subsidiary as a Financing Unrestricted Subsidiary shall be deemed to be an Investment by the Company and each applicable Restricted Subsidiary (as applicable) in an amount equal to the fair market value (as determined in good faith by the Company's Board of Directors or, if such fair market value exceeds $20.0 million, in writing by an Independent Financial Advisor) of the total assets of such Unrestricted Subsidiary at the date of designation.

    Limitations on Issuances of Guarantees of Indebtedness

        The Company will not permit any of its Wholly Owned Restricted Subsidiaries that is not a Guarantor, directly or indirectly, to guarantee any other Indebtedness of the Company or any Guarantor unless such Wholly Owned Restricted Subsidiary within 20 days executes and delivers a supplemental indenture to the Indenture providing a Note Guarantee, which Note Guarantee shall be senior to or pari passu with such Subsidiary's Guarantee of such other Indebtedness.

        Notwithstanding the preceding paragraph, any Note Guarantee will provide by its terms that it may be automatically and unconditionally released and discharged under the circumstances described above under the caption "—Note Guarantees."

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    Payments for Consent

        The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment.

    Reports

        Whether or not required by the Commission, so long as any Notes are outstanding, the Company will make available to the Trustee and the Holders of Notes, within the time periods specified in the Commission's rules and regulations for non-accelerated filers:

            (1)   all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms; and

            (2)   all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.

        In addition, whether or not required by the Commission, the Company will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission's rules and regulations for non-accelerated filers (unless the Commission will not accept such a filing); provided that the Company's obligation to file information and reports with the Commission under the Indenture shall not commence until such time that the Company has filed a registration statement pursuant to the Registration Rights Agreement and such registration statement has been declared effective by the Commission, and, prior to such time, the Company shall provide a copy of all of the information and reports referred to in clauses (1) and (2) above by posting such information on the website of the Company or otherwise making it available to the Trustee and Holders of the Notes. In addition, the Company and the Note Guarantors have agreed that, for so long as any Notes remain outstanding, they will make available to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, which requirement shall be deemed satisfied (i) by posting such information on the website of the Company or (ii) if such information is contained in any publicly available filing by the Company with the Commission.

        In the event that any direct or indirect parent company of the Company becomes a Guarantor (which shall be permitted, subject to compliance with the Indenture, at any time, at the Company's sole discretion), the Indenture will permit the Company to satisfy its obligations in this covenant with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand.

        If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the first paragraph of this covenant shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in "Management's Discussion and Analysis of Financial Condition and Results of Operations," of the financial condition and results of operations of the Company and its Restricted

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Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

Events of Default and Remedies

        Each of the following is an "Event of Default":

            (1)   default for 30 days in the payment when due and payable upon redemption, acceleration or otherwise of interest on, or Additional Interest with respect to, the Notes;

            (2)   default in payment when due and payable upon redemption, acceleration or otherwise of the principal of or premium, if any, on the Notes;

            (3)   failure by the Company or any of its Restricted Subsidiaries to comply with the provisions described under the captions "—Repurchase at the Option of Holders—Change of Control," "—Repurchase at the Option of Holders—Asset Sales" or "—Certain Covenants—Merger, Consolidation or Sale of All or Substantially All Assets;"

            (4)   failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice given by the Trustee or the Holders of not less than 25% in principal of the Outstanding Notes to comply with any of the other agreements (other than a default referred to in clauses (1), (2) and (3) above) in the Indenture; provided that in the case of a failure to comply with the Indenture provisions under "—Reports," such period of continuance of such default shall be 120 days after written notice described in this clause (4) has been given; provided, further, that, if applicable, failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Section 314(a) of the Trust Indenture Act will not in itself be deemed a Default or Event of Default under the Indenture;

            (5)   default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of the Indenture, if that default:

              (a)   is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a "Payment Default"); or

              (b)   results in the acceleration of such Indebtedness prior to its express maturity,

    and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $25.0 million or more;

            (6)   failure by the Company or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $25.0 million, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final;

            (7)   except as permitted by the Indenture, any Note Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Note Guarantee, other than by reason of termination of the Indenture or the release of any such Note Guarantee in accordance with the Indenture; and

            (8)   certain events of bankruptcy or insolvency with respect to the Company any of its Significant Subsidiaries or group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary.

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        In the case of an Event of Default arising under clause (8), all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.

        The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or Additional Interest) if it determines that withholding notice is in their interest. In addition, the Trustee shall have no obligation to accelerate the Notes if in the judgment of the Trustee acceleration is not in the best interest of the Holders of the Notes.

        The Indenture provides that the Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, waive any existing Default and its consequences under the Indenture, except a continuing Default in the payment of interest or Additional Interest on, premium, if any, or the principal of any Note held by a non consenting Holder. In the event of any Event of Default specified in clause (4) above, such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose:

            (1)   the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or

            (2)   holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or

            (3)   the default that is the basis for such Event of Default has been cured.

        Subject to the provisions of the Indenture relating to the duties of the Trustee thereunder, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any of the Holders of the Notes unless the Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless:

            (1)   such Holder has previously given the Trustee notice that an Event of Default is continuing;

            (2)   Holders of at least 25% in principal amount of the total outstanding Notes have requested the Trustee to pursue the remedy;

            (3)   Holders of the Notes have offered the Trustee reasonable security or indemnity against any loss, liability or expense;

            (4)   the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and

            (5)   Holders of a majority in principal amount of the total outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60 day period.

        Subject to certain restrictions, under the Indenture the Holders of a majority in principal amount of the total outstanding Notes are given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability.

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        The Indenture provides that the Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, within ten Business Days, upon becoming aware of any Default, to deliver to the Trustee a statement specifying such Default.

No Personal Liability of Directors, Officers, Employees, Stockholders and Equityholders

        No director, officer, employee, incorporator, stockholder or equityholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver and release may not be effective to waive or release liabilities under the federal securities laws.

Legal Defeasance and Covenant Defeasance

        The Company may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding Notes and all obligations of the Guarantors discharged with respect to their Note Guarantees ("Legal Defeasance") except for:

            (1)   the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium and Additional Interest, if any, on such Notes when such payments are due from the trust referred to below;

            (2)   the Company's obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

            (3)   the rights, powers, trusts, duties and immunities of the Trustee, and the Company's and the Guarantor's obligations in connection therewith; and

            (4)   the Legal Defeasance provisions of the Indenture.

        In addition, the Company may, at its option and at any time, elect to have the obligations of the Company and the Guarantors released with respect to certain covenants that are described in the Indenture ("Covenant Defeasance") and thereafter any omission to comply with those covenants shall not constitute a Default or Event of Default with respect to the Notes. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under "Events of Default" will no longer constitute an Event of Default with respect to the Notes.

        In order to exercise either Legal Defeasance or Covenant Defeasance:

            (1)   the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, to pay the principal of, or interest and premium and Additional Interest, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date;

            (2)   in the case of Legal Defeasance, the Company shall have delivered to the Trustee an opinion of counsel reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a

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    result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

            (3)   in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an opinion of counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

            (4)   no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);

            (5)   such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);

            (6)   the Company shall deliver to the Trustee an officer's certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and

            (7)   the Company shall deliver to the Trustee an officer's certificate and an opinion of counsel, (which opinion of counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

Amendment, Supplement and Waiver

        Except as provided in the next two succeeding paragraphs, the Indenture, the Note Guarantees or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and any existing default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).

        Without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder):

            (1)   reduce the principal amount of such Notes whose Holders must consent to an amendment, supplement or waiver;

            (2)   reduce the principal of or change the fixed final maturity of any such Note or alter or waive the provisions, with respect to the redemption of such Notes (other than provisions relating to the covenants described above under the caption "Repurchase at the Option of Holders");

            (3)   reduce the rate of or change the time for payment of interest on any Note;

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            (4)   waive a Default in the payment of principal of or premium, if any, or interest on the Notes, except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration, or in respect of a covenant or provision contained in the Indenture or any Note Guarantee which cannot be amended or modified without the consent of all Holders;

            (5)   make any Note payable in money other than that stated therein;

            (6)   make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders to receive payments of principal of or premium, if any, or interest on the Notes;

            (7)   make any change in these amendment and waiver provisions;

            (8)   impair the right of any Holder to receive payment of principal of, or interest on such Holder's Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder's Notes;

            (9)   make any change to or modify the ranking of the Notes that would adversely affect the Holders; or

            (10) except as expressly permitted by the Indenture, modify the Note Guarantee of any Subsidiary in any manner adverse to the Holders of the Notes.

        Notwithstanding the preceding, without the consent of any Holder of Notes, the Company, the Guarantors and the Trustee may amend or supplement the Indenture or the Notes:

            (1)   to cure any ambiguity, omission, mistake, defect or inconsistency;

            (2)   to provide for uncertificated Notes in addition to or in place of certificated Notes;

            (3)   to comply with the covenant relating to mergers, consolidations and sales of assets;

            (4)   to provide for the assumption of the Company's or any Guarantor's obligations to the Holders;

            (5)   to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under the Indenture of any such Holder;

            (6)   to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company or any Guarantor;

            (7)   to comply with requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;

            (8)   to evidence and provide for the acceptance and appointment under the Indenture of a successor Trustee thereunder pursuant to the requirements thereof;

            (9)   to provide for the issuance of exchange notes or private exchange notes, which are identical to exchange notes except that they are not freely transferable;

            (10) to add a Guarantor under the Indenture;

            (11) to make any amendment to the provisions of the Indenture relating to the transfer and legending of Notes as permitted by the Indenture, including, without limitation to facilitate the issuance and administration of the Notes; provided, however, that (i) compliance with the Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Notes; or

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            (12) to conform the text of the Indenture or the Notes to any provision of the "Description of the Notes" in the Offering Memorandum to the extent that such provision in the "Description of the Notes" in the Offering Memorandum was intended to be a verbatim recitation of a provision of the Indenture or the Notes.

Satisfaction and Discharge

        The Indenture will be discharged and will cease to be of further effect as to all Notes issued thereunder, when either:

            (1)   all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or

            (2)   (a) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and Additional Interest, if any, and accrued interest to the date of maturity or redemption as the case may be;

              (b)   no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar and any simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) and such deposit will not result in a breach or violation of, or constitute a default under, any other material instrument (other than the Indenture) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);

              (c)   the Company or any Guarantor has paid or caused to be paid all sums payable by it under the Indenture; and

              (d)   the Company has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.

        In addition, the Company must deliver an officer's certificate and an opinion of counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

Concerning the Trustee

        If the Trustee becomes a creditor of the Company or any Guarantor, the Indenture limits its right to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue or resign.

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        The Holders of a majority in principal amount of the then outstanding Notes have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee, subject to certain exceptions. The Indenture provides that in case an Event of Default shall occur and be continuing, the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent person in the conduct of his own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any Holder of the Notes, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.

Governing Law

        The Indenture, the Notes and the Note Guarantees are governed by and construed in accordance with the laws of the State of New York.

Additional Information

        Anyone who receives this prospectus may obtain a copy of the Indenture, the Registration Rights Agreement and the Notes without charge by writing to ClubCorp, Inc., 3030 LBJ Freeway, Dallas, Texas 75234, Attention: Curt McClellan, Chief Financial Officer.

Certain Definitions

        Set forth below are certain defined terms used in the Indenture. Reference is made to the Indenture for a full disclosure of all such terms, as well as any other capitalized terms used herein for which no definition is provided.

        "Acquired Debt" means, with respect to any specified Person:

            (1)   Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

            (2)   Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

        "Additional Interest" means all Additional Interest, as defined in and then owing pursuant to the Registration Rights Agreement.

        "Adjusted EBITDA" means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period,

            (1)   increased (without duplication) by:

              (a)   provision for taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus

              (b)   Fixed Charges of such Person for such period (including (x) net losses or Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of "Consolidated Interest Expense" pursuant to clauses 1(t) through 1(z) thereof, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus

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              (c)   Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus

              (d)   any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by the Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the offering of the Notes and the Credit Facilities and (ii) any amendment or other modification of the Notes, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

              (e)   the amount of any restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Issue Date and costs related to the closure and/or consolidation of facilities; plus

              (f)    any other non-cash charges, including any write offs or write downs, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

              (g)   the amount of any non-controlling interest income or expense consisting of Subsidiary income or loss attributable to minority equity interests of third parties in any non-Wholly Owned Restricted Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus

              (h)   the amount of management, monitoring, consulting and advisory fees and related expenses paid in such period to the Investors to the extent otherwise permitted under "Certain Covenants—Transactions with Affiliates;" plus

              (i)    the amount of net cost-savings projected by the Company in good faith to be realized as a result of specified actions initiated or to be taken on or prior to the date that is 12 months after any acquisition, merger or operational change (calculated on a pro forma basis as though such cost-savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost-savings are reasonably identifiable and quantifiable, (y) no cost-savings shall be added pursuant to this clause (i) to the extent duplicative of any expenses or charges relating to such cost-savings that are included in clause (e) above, and (z) the aggregate amount of cost-savings added pursuant to this clause (i) shall not exceed in any Four Quarter Period (A) $3.0 million in connection with any acquisition of a club and (B) $10.0 million for such Four Quarter Period (which adjustments may be incremental to pro forma adjustments made pursuant to the second paragraph of the definition of "Fixed Charge Coverage Ratio"); plus

              (j)    the amount of deferred revenue relating to initiation deposits and fees that was written off in connection with the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006 which, but for such write-off, would have been recognized as revenue in such period; plus

              (k)   any costs or expense incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest of the Company (other than

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      Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (3) of the first paragraph under "Certain Covenants—Restricted Payments;" plus

              (l)    the amount of expenses relating to payments made to option holders of any direct or indirect parent company of the Company or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under the Indenture;

              (m)  fees and expenses of third parties retained by management in connection with preparing the Company to comply with the public filing requirements of the Commission and the Sarbanes-Oxley Act of 2002, as amended, and related rules and regulations, to the extent deducted in computing Consolidated Net Income; and

              (n)   any state or local property taxes, regulatory expenses or other charges directly resulting from (i) the Reorganization Transactions described in the offering memorandum relating to the initial offering of the Notes or (ii) the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006.

            (2)   decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted EBITDA in any prior period.

        "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control," as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms "controlling," "controlled by" and "under common control with" shall have correlative meanings.

        "Asset Sale" means:

            (1)   the sale, conveyance or other disposition of any property or assets of the Company or any of its Restricted Subsidiaries; or

            (2)   the issuance or sale of Equity Interests by any of the Company's Restricted Subsidiaries (other than Preferred Stock of Restricted Subsidiaries issued in compliance with the covenant described under "—Incurrence of Indebtedness and Issuance of Preferred Stock").

        Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:

            (a)   any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business;

            (b)   the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to the provisions described above under "Certain Covenants—Merger, Consolidation or Sale of All or Substantially All Assets" or any disposition that constitutes a Change of Control pursuant to the Indenture;

            (c)   the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under the covenant described above under "Certain Covenants—Restricted Payments;"

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            (d)   any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value of less than $7.5 million;

            (e)   any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Company to the Company or by the Company or a Restricted Subsidiary of the Company to another Restricted Subsidiary of the Company;

            (f)    to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, any exchange of like property (excluding any boot thereon);

            (g)   the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;

            (h)   any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

            (i)    foreclosures, condemnation or any similar action on assets;

            (j)    any financing transaction with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back Transactions and asset securitizations permitted by the Indenture;

            (k)   any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;

            (l)    any disposition of assets or issuance or sale of Equity Interests of any Dormant Subsidiary; and

            (m)  any disposition of property or assets in connection with the Reorganization Transactions.

        "Attributable Debt" in respect of a Sale and Leaseback Transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

        "Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial ownership of all securities that such "person" has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.

        "Board of Directors" means:

            (1)   with respect to a corporation, the board of directors of the corporation or any committee duly designated thereby;

            (2)   with respect to a partnership, the Board of Directors of the general partner of the partnership; and

            (3)   with respect to any other Person, the board or committee of such Person serving a similar function.

        "Business Day" means each day which is not a Legal Holiday.

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        "Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.

        "Capital Stock" means:

            (1)   in the case of a corporation, corporate stock;

            (2)   in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

            (3)   in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

            (4)   any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

        "Capitalized Software Expenditures" means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.

        "Cash Equivalents" means:

            (1)   United States dollars;

            (2)   (a) euro, or any national currency of any participating member state in the EMU; or

              (b)   in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by them from time to time in the ordinary course of business;

            (3)   securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof, the securities of which are unconditionally guaranteed as a full faith and credit obligation of the U.S. government, with maturities of 12 months or less from the date of acquisition;

            (4)   certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $500.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;

            (5)   repurchase obligations for underlying securities of the types described in clauses (3) and (4) entered into with any financial institution meeting the qualifications specified in clause (4) above;

            (6)   commercial paper rated at least P-1 by Moody's or at least A-1 by S&P and in each case maturing within 12 months after the date of creation thereof;

            (7)   marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody's or S&P, respectively (or, if at any time neither Moody's nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof;

            (8)   investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;

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            (9)   readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody's or S&P with maturities of 24 months or less from the date of acquisition;

            (10) Indebtedness or Preferred Stock issued by Persons with a rating of "A" or higher from S&P or "A2" or higher from Moody's with maturities of 12 months or less from the date of acquisition; and

            (11) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody's.

        Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

        "Change of Control" means the occurrence of any of the following:

            (1)   the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person other than a Permitted Holder;

            (2)   the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors (except by reason of temporary vacancies created by the death, incapacity or the unscheduled resignation of a director, prior to the replacement of such director); or

            (3)   the Company becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of, (i) prior to the consummation of an underwritten public Equity Offering by the Company or any direct or indirect parent company of the Company, 35% or more of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Company, or (ii) subsequent to the consummation of an underwritten public Equity Offering by the Company or any direct or indirect parent company of the Company, 50% or more of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Company.

        "Consolidated Depreciation and Amortization Expense" means with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees and Capitalized Software Expenditures of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

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        "Consolidated Interest Expense" means, with respect to any Person for any period, without duplication, the sum of:

            (1)   consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, other than with respect to Indebtedness borrowed under the Credit Agreement or the Notes, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (t) interest expense relating to membership deposit liabilities, (u) accretion or accrual of discounted liabilities not constituting Indebtedness, (v) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (w) any Additional Interest and any comparable "additional interest" with respect to other securities, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and original issue discount with respect to Indebtedness borrowed under the Credit Agreement, (y) any expensing of bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any receivables facility); plus

            (2)   consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

            (3)   interest income for such period.

For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

        "Consolidated Net Income" means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided, however, that without duplication:

            (1)   any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, severance, relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded,

            (2)   the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,

            (3)   any after-tax effect of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,

            (4)   any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Company, shall be excluded,

            (5)   the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Company shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period,

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            (6)   solely for the purpose of determining the amount available for Restricted Payments under clause (3)(a) of the first paragraph of "Certain Covenants—Restricted Payments," the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived, provided that Consolidated Net Income of the Company will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to the Company or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,

            (7)   effects of adjustments (including the effects of such adjustments pushed down to the Company and its Restricted Subsidiaries) in the property and equipment, software and other intangible assets, deferred revenue and debt line items in such Person's consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any consummated acquisition after the Issue Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,

            (8)   any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded,

            (9)   any impairment charge, asset write-off or write-down, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded,

            (10) any (i) non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights and (ii) income (loss) attributable to deferred compensation plans or trusts shall be excluded,

            (11) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,

            (12) accruals and reserves that are established, adjusted or changed as a result of the adoption or modification of accounting policies, shall be excluded,

            (13) to the extent covered by insurance and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption shall be excluded,

            (14) any net gain or loss resulting in such period from Hedging Obligations and the application of Financial Accounting Standards Codification No. 815—Derivatives and Hedging shall be excluded, and

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            (15) any net gain or loss resulting in such period from currency transaction or translation gain or losses related to currency remeasurements (including any net loss or gain resulting from hedge agreements for currency exchange risk) shall be excluded.

        Notwithstanding the foregoing, for the purpose of the covenant described under "Certain Covenants—Restricted Payments" only (other than clause (3)(d) thereof of the first paragraph), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Company and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Company and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by the Company or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under such covenant pursuant to clause (3)(d) thereof.

        "Consolidated Secured Debt Ratio" as of any date of determination means, the ratio of (1) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries (other than Hedging Obligations) that is secured by Liens as of the end of the most recent fiscal period for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur to (2) the Company's Adjusted EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Adjusted EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio. For purposes of this definition, Obligations in respect of Capitalized Lease Obligations shall not be considered secured by Liens.

        "Consolidated Total Indebtedness" means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, all obligations relating to liabilities representing membership deposits) and (2) the aggregate amount of all outstanding Disqualified Stock of the Company and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP. For purposes hereof, the "maximum fixed repurchase price" of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Company's Board of Directors.

        "Contingent Obligations" means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,

            (1)   to purchase any such primary obligation or any property constituting direct or indirect security therefor,

            (2)   to advance or supply funds

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              (a)   for the purchase or payment of any such primary obligation, or

              (b)   to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or

            (3)   to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

        "Continuing Director" means during any period of 12 consecutive months beginning after the Issue Date, individuals who at the beginning of any such 12-month period constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Company was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved, including new directors designated in or provided for in an agreement regarding the merger, consolidation or sale, transfer or other conveyance, of all or substantially all of the assets of the Company or any of its direct or indirect parent companies, if such agreement was approved by a vote of such majority of directors).

        "Controlled Investment Affiliate" means, as to any Person, any other Person, other than KSL, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Company and/or other companies.

        "Credit Agreement" means that certain Credit Agreement to be dated on or about November 30, 2010, among CCA Club Operations Holdings, LLC, the Company, as borrower, the other borrowers party thereto, Citibank, N.A., as administrative agent, and the lenders party thereto from time to time, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, modified, renewed, refunded, replaced or refinanced from time to time.

        "Credit Facilities" means, with respect to the Company or any of its Restricted Subsidiaries, one or more debt facilities, including the Credit Agreement, or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock") or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.

        "Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

        "Designated Non-cash Consideration" means the fair market value of non-cash consideration received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an officer's certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Company, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or repurchase of or collection or payment on such Designated Non-cash Consideration.

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        "Designated Preferred Stock" means Preferred Stock of the Company or any parent corporation thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer's Certificate executed by the principal financial officer of the Company or the applicable parent corporation thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of the first paragraph of the "Certain Covenants—Restricted Payments" covenant.

        "Disposition" or "Dispose" means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction and any sale of Equity Interests, but excluding any issuance by such Person of its own Equity Interests), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

        "Disqualified Stock" means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

        "Domestic Subsidiary" means any Restricted Subsidiary that was formed under the laws of the United States or any state thereof or the District of Columbia.

        "Dormant Subsidiary" shall have the same meaning as defined in the Credit Agreement on the Issue Date.

        "EMU" means economic and monetary union as contemplated in the Treaty on European Union.

        "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

        "Equity Offering" means any public or private sale of common stock or Preferred Stock of the Company or any of its direct or indirect parent companies (excluding Disqualified Stock), other than:

            (1)   public offerings with respect to the Company's or any direct or indirect parent company's common stock registered on Form S-8;

            (2)   issuances to any Subsidiary of the Company; and

            (3)   any such public or private sale that constitutes an Excluded Contribution.

        "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

        "Excluded Contribution" means net cash proceeds, marketable securities or Qualified Proceeds received by the Company from:

            (1)   contributions to its common equity capital; and

            (2)   the sale (other than to a Subsidiary of the Company or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the

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    Company) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Company;

in each case designated as Excluded Contributions pursuant to an officer's certificate executed by the principal financial officer of the Company on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (3) of the first paragraph under "Certain Covenants—Restricted Payments."

        "Existing Indebtedness" means the aggregate principal amount of Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Credit Agreement) in existence on the Issue Date.

        "Financing Unrestricted Subsidiary" means any Unrestricted Subsidiary that owns assets or property (other than cash) that were owned by the Company or its Subsidiaries on the Issue Date.

        "Fixed Charge Coverage Ratio" means, with respect to any Person for any period, the ratio of Adjusted EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the "Fixed Charge Coverage Ratio Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable Four Quarter Period.

        For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the applicable Four Quarter Period or subsequent to such reference period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in Adjusted EBITDA resulting therefrom) had occurred on the first day of the applicable Four Quarter Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the applicable Four Quarter Period.

        For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in

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the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.

        "Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of:

            (1)   Consolidated Interest Expense of such Person for such period;

            (2)   all cash dividends or other distributions paid (excluding items eliminated in consolidation) during such period on any series of Preferred Stock issued by such Person; and

            (3)   all cash dividends or other distributions paid (excluding items eliminated in consolidation) during such period on any series of Disqualified Stock issued by such Person.

        "Foreign Subsidiary" means, with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof and any Restricted Subsidiary of such Foreign Subsidiary.

        "Four Quarter Period" means the most recently ended four fiscal quarters of the Company for which internal financial statements are available immediately preceding the date for which the Fixed Charge Coverage Ratio is being calculated.

        "GAAP" means generally accepted accounting principles in the United States which are in effect on the Issue Date.

        "guarantee" means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness. The term "guarantee" used as a verb has a corresponding meaning.

        "Guarantors" means:

            (1)   each Wholly Owned Restricted Subsidiary of the Company that has guaranteed the Company's Obligations under the Credit Agreement and that is a party to the Indenture on the date of the Indenture; and

            (2)   any other subsidiary that executes a Note Guarantee in accordance with the provisions of the Indenture;

and their respective successors and assigns.

        "Hedging Obligations" means, with respect to any specified Person, the obligations of such Person under any interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies.

        "Holder" means the Person in whose name a Note is registered on the registrar's books.

        "Immediate Family Members" means with respect to any individual, such individual's child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the fore-going individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any do-nor-advised fund of which any such individual is the donor.

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        "Indebtedness" means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:

            (1)   in respect of borrowed money;

            (2)   evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

            (3)   in respect of banker's acceptances;

            (4)   representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligations until, after 30 days of becoming due and payable, has not been paid and such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP; or

            (5)   representing any Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP, provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the ordinary course of business, (b) obligations under or in respect of receivables facilities or (c) liabilities representing membership deposits. In addition, the term "Indebtedness" includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person other than by endorsement of negotiable instruments for collection in the ordinary course of business.

        The amount of any Indebtedness outstanding as of any date shall be:

            (1)   the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

            (2)   the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.

        "Independent Financial Advisor" means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.

        "Investments" means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made consistent with past practices), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet (excluding the footnotes) prepared in accordance with GAAP. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Equity Interests of such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of the covenant described above under the caption "—Certain Covenants—Restricted Payments." The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an

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amount equal to the fair market value of the Investment held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of the covenant described above under the caption "Certain Covenants—Restricted Payments."

        "Investment Grade Rating" means a rating equal to or higher than Baa3 (or the equivalent) by Moody's and BBB- (or the equivalent) by S&P.

        "Investment Grade Securities" means:

            (1)   securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);

            (2)   debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries;

            (3)   investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and

            (4)   corresponding instruments in countries other than the United States customarily utilized for high quality investments.

        "Investors" means KSL and its respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

        "Issue Date" means November 30, 2010.

        "KSL" means KSL Capital Partners, LLC.

        "Legal Holiday" means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.

        "Leverage Ratio" means, for any date of determination, the ratio of (1) Consolidated Total Indebtedness to, (2) Adjusted EBITDA of the Company and its Restricted Subsidiaries for the Four Quarter Period. In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the Four Quarter Period for which the Leverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Leverage Ratio is made (the "Leverage Ratio Calculation Date"), then the Leverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable Four Quarter Period.

        For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the Four Quarter Period or subsequent to such Four Quarter Period and on or prior to or simultaneously with the Leverage Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in Adjusted EBITDA resulting therefrom) had occurred on the first day of the Four Quarter Period. If since the beginning of such Four Quarter Period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have

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required adjustment pursuant to this definition, then the Leverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the Four Quarter Period.

        For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Leverage Ratio Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate. For purposes of this definition, the amount of Indebtedness outstanding under any revolving credit facility shall be calculated based on (A) the average daily balance of such Indebtedness during the Four Quarter Period or such shorter period for which such Credit Facility was outstanding or (B) if such Credit Facility was created after the end of the Four Quarter Period, the average daily balance of such Indebtedness during the period from the creation of such facility to the date of determination.

        "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.

        "Make-Whole Premium" means, with respect to a Note on any date of redemption, the greater of (1) 1% of the principal amount of such Note or (2) the excess of the present value at such date of redemption of (i) the redemption price of such Note at December 1, 2014 (such redemption price being set forth in the table appearing under "—Optional Redemption") plus (ii) all remaining required interest payments (exclusive of interest accrued and unpaid to the date of redemption) due on such Note through December 1, 2014 computed using a discount rate equal to the Treasury Rate as of such date of redemption plus 50 basis points, over the then outstanding principal amount of such Note.

        "Management Agreement" means the Investment Management Agreement, dated as of December 26, 2006, among KSL Advisors, LLC, Fillmore CCA Holdings I, LLC, Fillmore CCA Holdings, Inc. and ClubCorp, Inc.

        "Moody's" means Moody's Investors Service, Inc. and any successor to its rating agency business.

        "Net Income" means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.

        "Net Proceeds" means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset

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Sale), net of the direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness to be paid as a result of such transaction and any deduction of appropriate amounts to be provided by the Company or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Company or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.

        "Non-Recourse Debt" means Indebtedness:

            (1)   as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender; and

            (2)   no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity.

        "Note Guarantee" means a guarantee by a Guarantor of the Company's obligations with respect to the Notes pursuant to the Indenture or any supplemental indenture to the Indenture.

        "Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

        "Offering Memorandum" means the Offering Memorandum dated November 22, 2010, pursuant to which the outstanding notes were offered.

        "Permitted Business" means any business conducted (as described in the offering memorandum) by the Company and its Restricted Subsidiaries on the Issue Date and other businesses reasonably related or ancillary thereto.

        "Permitted Holders" means KSL, investment vehicles managed by KSL, partners or members of KSL and any Affiliates or Related Persons therof.

        "Permitted Investments" means:

            (1)   any Investment in the Company or in a Restricted Subsidiary of the Company;

            (2)   any Investment in cash, Cash Equivalents or Investment Grade Securities;

            (3)   any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:

              (a)   such Person becomes a Restricted Subsidiary of the Company; or

              (b)   such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company,

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    and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;

            (4)   any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the covenant described above under the caption "—Repurchase at the Option of Holders—Asset Sales" or any other disposition of assets not constituting an Asset Sale;

            (5)   any Investments received solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company or any of its direct or indirect parent companies;

            (6)   Hedging Obligations incurred under clause (8) under the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant;

            (7)   [reserved];

            (8)   accounts receivable, prepaid expenses, advances and deposits arising in the ordinary course of business of the Company or its Restricted Subsidiaries;

            (9)   Investments received (a) in settlement of debts created in the ordinary course of business and owing to the Company or any of its Restricted Subsidiaries, (b) in satisfaction of judgments or foreclosure or (c) in exchange for any other Investment or accounts receivable held by the Company or any of its Restricted Subsidiaries in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such Investment or account receivable;

            (10) loans or advances to members representing their deferred initiation deposits or fees, arising in the ordinary course of business consistent with past practice;

            (11) loans and advances to employees, directors, officers, managers, distributors and consultants (a) for business-related travel expenses, moving expenses and other similar expenses or payroll advances, in each case incurred in the ordinary course of business or consistent with past practices or (b) to fund such Person's purchase of Equity Interests of the Company or any direct or indirect parent company thereof; provided that the proceeds of any such loans to purchase Equity Interests under this clause (11)(b) are either received by the Company or contributed by such direct or indirect parent company to the Company and excluded from the calculation under clause (3) of the first paragraph of "Certain Covenants—Restricted Payments" except to the extent such loans are actually repaid;

            (12) guarantees of Indebtedness permitted under the covenant described in "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock;"

            (13) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;

            (14) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of the second paragraph of the covenant described under "Certain Covenants—Transactions with Affiliates" (except transactions described in clauses (3), (5) and (8) of such paragraph);

            (15) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment;

            (16) additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (16) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of $45.0 million and 2.5%

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    of Total Assets at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

            (17) Investments resulting from the designation of one or more Financing Unrestricted Subsidiaries; provided that the aggregate fair market value of all property and assets (as valued at the time of designation of each applicable Subsidiary (as described under "Designation of Restricted and Unrestricted Subsidiaries") that are transferred to, contributed to or otherwise held by all Financing Unrestricted Subsidiaries shall not exceed $75.0 million;

            (18) any Investment existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date to the extent described in the Offering Memorandum, or an Investment consisting of any extension, modification or renewal of any such Investment existing on the Issue Date or binding commitment in effect on the Issue Date to the extent described in the Offering Memorandum; provided that the amount of any such Investment may be increased in such extension, modification or renewal only (a) as required by the terms of such Investment or binding commitment as in existence on the Issue Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or (b) as otherwise permitted under the Indenture;

            (19) advances, loans or extensions of trade credit in the ordinary course of business by the Company or any of its Restricted Subsidiaries;

            (20) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business; and

            (21) repurchases of Notes.

        "Permitted Liens" means:

            (1)   Liens securing Indebtedness permitted to be incurred under one or more Credit Facilities, including any letter of credit relating thereto, pursuant to the covenant described in "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" in an amount not to exceed the amount of Indebtedness permitted to be incurred pursuant to clause (1) in "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock;"

            (2)   Liens in favor of the Company or any of its Restricted Subsidiaries;

            (3)   (a) Liens on deposits to secure the performance of bids, trade contracts, governmental contracts, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations that do not materially or adversely affect the value or use of such property), in each case, other than Indebtedness, and incurred in the ordinary course of business or (b) obligations in respect of letters of credit or bank guarantees that have been posted to support payment of the items set forth in clause (a);

            (4)   Liens for taxes, assessments or other governmental charges or claims that are not yet delinquent or overdue for a period of more than 30 days, are not yet payable or subject to penalties for non-payment or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor;

            (5)   leases, subleases, licenses or sublicenses granted to others that do not in any material respect interfere with the business of the Company or any of its Restricted Subsidiaries;

            (6)   landlords', carriers', warehousemen's, mechanics', materialmen's, repairmen's, construction contractor's or other similar Liens, in each case, not overdue for a period of more than 90 days or which are being contested in good faith by appropriate proceedings or other Liens arising out of

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    judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

            (7)   (a) Liens incurred or pledges or deposits made in connection with workers' compensation, unemployment insurance and other social security laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business, (b) pledges and deposits in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies, in each case payable to insurance carriers that provide insurance to the Company or any of its Restricted Subsidiaries, or (c) obligations in respect of letters of credit or bank guarantees that have been posted by the Company or any of its Restricted Subsidiaries to support the payments of the items set forth in clauses (a) and (b);

            (8)   survey exceptions, encroachments, protrusions, recorded and unrecorded servitudes, easements, rights-of-way, restrictions or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, variations in area or measurement, rights of parties in possession under written leases or occupancy agreements, and other title defects and non-monetary encumbrances affecting real property, or zoning, building or other restrictions as to the use of real properties or other similar encumbrances incurred which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary course of the business of the Company or any of its Restricted Subsidiaries, as the case may be, and any exceptions to title set forth in any title policies;

            (9)   Liens arising from the rendering of a final judgment or order against the Company or any of its Restricted Subsidiaries that does not give rise to an Event of Default;

            (10) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;

            (11) Liens incurred in the ordinary course of business with respect to obligations that do not exceed $20.0 million at any one time outstanding;

            (12) Liens on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, that such Liens may not extend to any other property or other assets owned by the Company or any of its Restricted Subsidiaries;

            (13) Liens on property or other assets at the time the Company or a Restricted Subsidiary acquired the property or such other assets, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any of its Restricted Subsidiaries; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger, amalgamation or consolidation; provided, further, that the Liens may not extend to any other property owned by the Company or any of its Restricted Subsidiaries;

            (14) Liens securing Hedging Obligations; provided that, with respect to Hedging Obligations relating to Indebtedness, such Indebtedness is, and is permitted to be under the Indenture, secured by a Lien on the same property securing such Hedging Obligations;

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            (15) Liens on specific items of inventory or other goods and the proceeds thereof of any Person securing such Person's accounts payable or similar trade obligations in respect of bankers' acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

            (16) Liens arising from Uniform Commercial Code (or equivalent statute) financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;

            (17) Liens on equipment of the Company or any of its Restricted Subsidiaries granted in the ordinary course of business to the Company's clients;

            (18) Liens to secure any modification, refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (12), (13) and (35); provided that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (12), (13) and (35) at the time the original Lien became a Permitted Lien under the Indenture, and (ii) an amount necessary to pay any fees and expenses, including premiums and accrued and unpaid interest, related to such modification, refinancing, refunding, extension, renewal or replacement;

            (19) deposits made or other security provided in the ordinary course of business to secure liability to insurance carriers;

            (20) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;

            (21) [reserved];

            (22) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

            (23) Liens (a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (b) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (c) in favor of banking institutions arising as a matter of law or under general terms and conditions encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

            (24) Liens that are contractual rights of set-off (a) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts of the Company or any of its Restricted Subsidiaries to permit satisfaction of over-draft or similar obligations incurred in the ordinary course of business of the Company and its Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered into with customers of the Company or any of its Restricted Subsidiaries in the ordinary course of business;

            (25) Liens securing obligations owed by the Company or any Restricted Subsidiary to any lender under the Credit Agreement or any Affiliate of such a lender in respect of any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds;

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            (26) any encumbrance or restriction (including put and call arrangements) with respect to capital stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

            (27) Liens solely on any cash earnest money deposits made by the Company or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted;

            (28) ground leases in respect of real property on which facilities owned or leased by the Company or any of its Subsidiaries are located;

            (29) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

            (30) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;

            (31) Liens on the assets of a Restricted Subsidiary that is not a Guarantor securing Indebtedness of such Subsidiaries that were permitted by the terms of the Indenture to be incurred;

            (32) Liens arising solely from precautionary Uniform Commercial Code (or equivalent statute) financing statements or similar filings;

            (33) Liens on vehicles arising from Capital Lease Obligations entered into with respect to such vehicles so long as such leases are permitted under the covenant "—Incurrence of Indebtedness and Issuance of Preferred Stock;"

            (34) Liens securing Capital Lease Obligations permitted to be incurred pursuant to the covenant described in "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" and Indebtedness permitted to be incurred under clauses (4) or (5) of the second paragraph of such covenant and any Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Capital Lease Obligations and Indebtedness incurred under such clauses (4) or (5) of the second paragraph of such covenant; provided, however, that such Liens securing Capital Lease Obligations or Indebtedness incurred under either clause (4) or (5) of the second paragraph of the covenant described in "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" may not extend to property owned by the Company or any Restricted Subsidiary other than the property being leased or acquired pursuant to such clause (4) or (5);

            (35) Liens existing on the Issue Date;

            (36) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary permitted to be incurred in accordance with the covenant described under "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock;"

            (37) Liens deemed to exist in connection with Investments in repurchase agreements permitted under "Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock;" provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;

            (38) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes; and

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            (39) Liens incurred to secure Obligations in respect of any Indebtedness permitted to be incurred pursuant to the covenant described above under "—Incurrence of Indebtedness and Issuance of Preferred Stock;" provided that, with respect to Liens securing Obligations permitted under this clause (39), at the time of incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio would be no greater than 3.00 to 1.0.

        "Permitted Refinancing Indebtedness" means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:

            (1)   the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest thereon and the amount of any reasonably determined premium (including reasonable tender premiums) necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith);

            (2)   such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

            (3)   if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and

            (4)   such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.

        "Person" means any individual, corporation, partnership, limited partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

        "Preferred Stock" means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up.

        "Priority Senior Obligations" means, without duplication:

            (1)   all Secured Indebtedness or Senior Indebtedness of the Company or any of its Restricted Subsidiaries;

            (2)   all Capital Lease Obligations of the Company or any of its Restricted Subsidiaries;

            (3)   all Attributable Debt of the Company or any of its Restricted Subsidiaries in respect of sale and leaseback transactions; and

            (4)   all Indebtedness (other than Indebtedness representing liability for refundable membership deposits or initiation fees incurred in the ordinary course of business) of any Restricted Subsidiary of the Company that is not a Guarantor.

        "Qualified Proceeds" means the fair market value (as determined in good faith by the Company's Board of Directors) of assets that are used or useful in, or Capital Stock of any Person engaged in, a Permitted Business.

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        "Rating Agencies" means Moody's and S&P or if Moody's or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company which shall be substituted for Moody's or S&P or both, as the case may be.

        "Registration Rights Agreement" means the Registration Rights Agreement related to the Notes dated the Issue Date, among the Company, the Guarantors and the initial purchaser.

        "Related Person" with respect to any Permitted Holder means:

            (1)   any controlling stockholder or a majority (or more) owned Subsidiary of such Permitted Holder or, in the case of an individual, any spouse or immediate family member of such Permitted Holder, any trust created for the benefit of such individual or such individual's estate, executor, administrator, committee or beneficiaries; or

            (2)   any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially holding a majority (or more) controlling interest of which consist of such Permitted Holder and/or such other Persons referred to in the immediately preceding clause (1).

        "Reorganization Transactions" means the Reorganization Transactions, as such term is defined in the Offering Memorandum.

        "Replacement Assets" means (1) assets that will be used or useful in a Permitted Business or (2) substantially all the assets of a Permitted Business or a majority the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary.

        "Restricted Investment" means an Investment other than a Permitted Investment.

        "Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.

        "Sale and Lease-Back Transaction" means any arrangement providing for the leasing by the Company or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such leasing.

        "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

        "Secured Indebtedness" means any Indebtedness of the Company or any of its Restricted Subsidiaries secured by a Lien upon property of the Company or any of its Restricted Subsidiaries.

        "Senior Indebtedness" means:

            (1)   all Indebtedness of the Company or any Guarantor outstanding under the Credit Facilities or Notes and related guarantees (including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Company or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for post filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created or incurred) and all obligations of the Company or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;

            (2)   all Hedging Obligations (and guarantees thereof) owing to a Lender (as defined in the Credit Facilities) or any Affiliate of such Lender (or any Person that was a Lender or an Affiliate

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    of such Lender at the time the applicable agreement giving rise to such Hedging Obligation was entered into), provided that such Hedging Obligations are permitted to be incurred under the terms of the Indenture;

            (3)   any other Indebtedness of the Company or any Guarantor permitted to be incurred under the terms of the Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related guarantee; and

            (4)   all Obligations with respect to the items listed in the preceding clauses (1), (2) and (3);

provided, however, that Senior Indebtedness shall not include:

              (a)   any obligation of such Person to the Company or any of its Subsidiaries;

              (b)   any liability for federal, state, local or other taxes owed or owing by such Person;

              (c)   any accounts payable or other liability to trade creditors arising in the ordinary course of business;

              (d)   any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness or other Obligation of such Person; or

              (e)   that portion of any Indebtedness which at the time of incurrence is incurred in violation of the Indenture.

        "Significant Subsidiary" means any Restricted Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.

        "Stated Maturity" means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

        "Subordinated Indebtedness" means, with respect to the Notes,

            (1)   any Indebtedness of the Company which is by its terms subordinated in right of payment to the Notes, and

            (2)   any Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Note Guarantee of such entity.

        "Subsidiary" means, with respect to any specified Person:

            (1)   any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and

            (2)   any partnership, joint venture, limited liability company or similar entity of which

              (a)   more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person

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      or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and

              (b)   such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

        "S&P" means Standard & Poor's, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.

        "Total Assets" means the total assets of the Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Company or such other Person as may be expressly stated.

        "Treasury Rate" means, as of any date of redemption, the yield to maturity at such date of redemption of United States Treasury securities with a constant maturity (as complied and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the date that the applicable redemption notice relating to such redemption is mailed (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the period from such date of redemption to December 1, 2014; provided, however, that if the period from such date of redemption to December 1, 2014 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

        "Unrestricted Subsidiary" means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

            (1)   has no Indebtedness other than Non-Recourse Debt;

            (2)   is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

            (3)   is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results; and

            (4)   has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries, unless such guarantee or credit support is released upon such designation.

        Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such designation and an officer's certificate certifying that such designation complied with the preceding conditions and was permitted by the covenant described above under the caption "—Certain Covenants—Restricted Payments." If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described under the caption "—Certain Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock," the Company shall be in default of such covenant.

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        "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

        "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

            (1)   the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

            (2)   the then outstanding principal amount of such Indebtedness.

        "Wholly Owned Restricted Subsidiary" of any specified Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors' qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such Person.

Book Entry, Delivery and Form

    The Global Notes

        The exchange notes will be issued in the form of registered, global form, without interest coupons, which we refer to as the global notes.

        Upon issuance, each of the global notes will be deposited with the Trustee (as custodian for DTC) and registered in the name of Cede & Co., as nominee of DTC. Ownership of beneficial interests in each global note will be limited to persons who have accounts with DTC, which we refer to as DTC participants, or persons who hold beneficial interests through DTC participants.

        We expect that under procedures established by DTC, ownership of beneficial interests in each global note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC participants) and the records of DTC participants (with respect to other owners of beneficial interests in the global note).

        Beneficial interests in the global notes may not be exchanged for notes in physical, certificated form except in the limited circumstances described below.

    Book-Entry Procedures for the Global Notes

        All interests in the global notes will be subject to the operations and procedures of DTC, Euroclear and Clearstream. We provide the following summaries of those operations and procedures solely for the convenience of investors. The operations and procedures of each settlement system are controlled by that settlement system and may be changed at any time. Neither we nor the initial purchasers are responsible for those operations or procedures.

        DTC has advised us that it is:

    •
    a limited purpose trust company organized under the laws of the State of New York;

    •
    a "banking organization" within the meaning of the New York State Banking Law;

    •
    a member of the Federal Reserve System;

    •
    a "clearing corporation" within the meaning of the Uniform Commercial Code; and

    •
    a "clearing agency" registered under Section 17A of the Exchange Act.

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        DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between its participants through electronic book-entry changes to the accounts of its participants. DTC's participants include securities brokers and dealers, including the initial purchasers; banks and trust companies; clearing corporations and other organizations. Indirect access to DTC's system is also available to others such as banks, brokers, dealers and trust companies; these indirect participants clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. Investors who are not DTC participants may beneficially own securities held by or on behalf of DTC only through DTC participants or indirect participants in DTC.

        So long as DTC's nominee is the registered owner of a global note, that nominee will be considered the sole owner or holder of the notes represented by that global note for all purposes under the indenture.

        Except as provided below, owners of beneficial interests in a global note:

    •
    will not be entitled to have notes represented by the global note registered in their names;

    •
    will not receive or be entitled to receive physical, certificated notes; and

    •
    will not be considered the owners or holders of the notes under the applicable indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee under the indenture.

        As a result, each investor who owns a beneficial interest in a global note must rely on the procedures of DTC to exercise any rights of a holder of notes under the indenture (and, if the investor is not a participant or an indirect participant in DTC, on the procedures of the DTC participant through which the investor owns its interest).

        Payments of principal, premium (if any) and interest with respect to the notes represented by a global note will be made by the Trustee to DTC's nominee as the registered holder of the global note. Neither we nor the Trustee will have any responsibility or liability for the payment of amounts to owners of beneficial interests in a global note, for any aspect of the records relating to or payments made on account of those interests by DTC, or for maintaining, supervising or reviewing any records of DTC relating to those interests.

        Payments by participants and indirect participants in DTC to the owners of beneficial interests in a global note will be governed by standing instructions and customary industry practice and will be the responsibility of those participants or indirect participants and DTC.

        Transfers between participants in DTC will be effected under DTC's procedures and will be settled in same-day funds. Transfers between participants in Euroclear or Clearstream will be effected in the ordinary way under the rules and operating procedures of those systems.

        Cross-market transfers between DTC participants, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected within DTC through the DTC participants that are acting as depositaries for Euroclear and Clearstream. To deliver or receive an interest in a global note held in a Euroclear or Clearstream account, an investor must send transfer instructions to Euroclear or Clearstream, as the case may be, under the rules and procedures of that system and within the established deadlines of that system. If the transaction meets its settlement requirements, Euroclear or Clearstream, as the case may be, will send instructions to its DTC depositary to take action to effect final settlement by delivering or receiving interests in the relevant global notes in DTC, and making or receiving payment under normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the DTC depositaries that are acting for Euroclear or Clearstream.

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        Because of time zone differences, the securities account of a Euroclear or Clearstream participant that purchases an interest in a global note from a DTC participant will be credited on the business day for Euroclear or Clearstream immediately following the DTC settlement date. Cash received in Euroclear or Clearstream from the sale of an interest in a global note to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream cash account as of the business day for Euroclear or Clearstream following the DTC settlement date.

        DTC, Euroclear and Clearstream have agreed to the above procedures to facilitate transfers of interests in the global notes among participants in those settlement systems. However, the settlement systems are not obligated to perform these procedures and may discontinue or change these procedures at any time. Neither we nor the Trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream or their participants or indirect participants of their obligations under the rules and procedures governing their operations.

    Certificated Notes

        Notes in physical, certificated form will be issued and delivered to each person that DTC identifies as a beneficial owner of the related notes only if:

    •
    DTC notifies us at any time that it is unwilling or unable to continue as depositary for the global notes and a successor depositary is not appointed within 90 days;

    •
    DTC ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days;

    •
    we, at our option, notify the trustee that we elect to cause the issuance of certificated notes; or

    •
    certain other events provided in the indenture should occur.

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MATERIAL U.S. FEDERAL INCOME AND ESTATE TAX CONSIDERATIONS

The Exchange Offer

        The exchange of outstanding notes for exchange notes in the exchange offer will not constitute a taxable event to holders for U.S. federal income tax purposes. Consequently, no gain or loss will be recognized by a holder upon receipt of an exchange note, the holding period of the exchange note will include the holding period of the outstanding note exchanged therefor and the basis of the exchange note will be the same as the basis of the outstanding note immediately before the exchange.

        In any event, persons considering the exchange of outstanding notes for exchange notes should consult their own tax advisors concerning the U.S. federal income tax consequences in light of their particular situations as well as any consequences arising under the laws of any other taxing jurisdiction.

Ownership of the Notes

        The following is a summary of the material U.S. federal income, and in the case of Non-U.S. Holders (as defined below) estate, tax considerations of the purchase, ownership and disposition of the notes as of the date hereof.

        Except where noted, this summary deals only with notes that are purchased upon original issuance at their initial offering price and are held as capital assets, and does not represent a detailed description of the U.S. federal income tax consequences applicable to you if you are subject to special treatment under the U.S. federal income tax laws, including if you are:

    •
    a dealer in securities or currencies;

    •
    a financial institution;

    •
    a regulated investment company;

    •
    a real estate investment trust;

    •
    a tax-exempt organization;

    •
    an insurance company;

    •
    a person holding the notes as part of a hedging, integrated, conversion or constructive sale transaction or a straddle;

    •
    a trader in securities that has elected the mark-to-market method of accounting for your securities;

    •
    a person liable for alternative minimum tax;

    •
    a pass-through entity or a person who is an investor in a pass-through entity; or

    •
    a U.S. Holder (as defined below) whose "functional currency" is not the U.S. dollar.

        The discussion below is based upon the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and regulations, rulings and judicial decisions as of the date hereof. Those authorities may be changed, perhaps retroactively, so as to result in U.S. federal income tax consequences different from those discussed below.

        If a partnership holds notes, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding notes, you should consult your tax advisors.

        This summary does not represent a detailed description of the U.S. federal income and estate tax consequences to you in light of your particular circumstances and does not address the effects of any

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state, local or non-U.S. tax laws. If you are considering the purchase of notes, you should consult your own tax advisors concerning the particular U.S. federal income and estate tax consequences to you of the ownership of the notes, as well as any consequences arising under other federal tax laws and the laws of any other taxing jurisdiction.

    U.S. Holders

        The following is a summary of certain U.S. federal income tax consequences that will apply to you if you are a U.S. Holder of the notes.

        "U.S. Holder" means a beneficial owner of a note that is for U.S. federal income tax purposes:

    •
    an individual citizen or resident of the United States;

    •
    a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

    •
    an estate the income of which is subject to U.S. federal income taxation regardless of its source; or

    •
    a trust if it (1) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.

    Payments of Interest

        Except as set forth below, qualified stated interest (as defined below) on a note generally will be taxable to you as ordinary income at the time it is paid or accrued in accordance with your method of accounting for tax purposes.

    Original Issue Discount

        The notes will be issued with original issue discount ("OID") and, therefore, you will be subject to special tax accounting rules, as described in greater detail below. You generally must include OID in gross income in advance of the receipt of cash attributable to that income.

        A note with an "issue price," as defined below, that is less than its stated principal amount generally will be issued with OID in an amount equal to that difference if that difference is at least 0.25% of the stated principal amount multiplied by the number of complete years to maturity. The "issue price" of a note will be the first price at which a substantial amount of the notes is sold to investors for cash (excluding sales to bond houses, brokers or similar persons or organizations acting in the capacity of underwriter, placement agent or wholesaler).

        The term "qualified stated interest" means stated interest that is unconditionally payable in cash or in property, other than debt instruments of the issuer, and meets all of the following conditions:

    •
    it is payable at least once per year;

    •
    it is payable over the entire term of the note; and

    •
    it is payable at a single fixed rate or, subject to certain conditions, based on one or more interest indices.

        The stated interest payments on the notes are qualified stated interest, and are treated as described above under "—Payments of Interest."

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        You generally must include OID in income using the "constant yield method." The amount of OID that you must include in income each taxable year is the sum of the "daily portions" of OID with respect to the note for each day during such taxable year or portion of such taxable year in which you held that note ("accrued OID"). The daily portion is determined by allocating to each day in any "accrual period" a pro rata portion of the OID allocable to that accrual period. The "accrual period" for a note may be of any length and may vary in length over the term of the note, provided that each accrual period is no longer than one year and each scheduled payment of principal or interest occurs on the first day or the final day of an accrual period. The amount of OID allocable to any accrual period other than the final accrual period is an amount equal to the excess, if any, of:

    •
    the note's "adjusted issue price" at the beginning of the accrual period multiplied by its yield to maturity, determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period, over

    •
    the aggregate of all qualified stated interest allocable to the accrual period.

        OID allocable to a final accrual period is the difference between the amount payable at maturity, other than a payment of qualified stated interest, and the adjusted issue price at the beginning of the final accrual period. Special rules will apply for calculating OID for an initial short accrual period. The "adjusted issue price" of a note at the beginning of any accrual period is equal to its issue price increased by the accrued OID for each prior accrual period. Under these rules, you will have to include in income increasingly greater amounts of OID in successive accrual periods.

        You may elect to treat all interest on any note as OID and calculate the amount includible in gross income under the constant yield method described above. The election is to be made for the taxable year in which you acquired the note, and may not be revoked without the consent of the Internal Revenue Service (the "IRS"). You should consult with your own tax advisors about this election.

    Market Discount

        If you purchase a note for an amount that is less than its adjusted issue price, the amount of the difference will be treated as "market discount" for United States federal income tax purposes, unless that difference is less than a specified de minimis amount. Under the market discount rules, you will be required to treat any principal payment on, or any gain on the sale, exchange, retirement or other disposition of, a note as ordinary income to the extent of the market discount that you have not previously included in income and are treated as having accrued on the note at the time of its payment or disposition.

        In addition, you may be required to defer, until the maturity of the note or its earlier disposition in a taxable transaction, the deduction of all or a portion of the interest expense on any indebtedness attributable to the note. You may elect, on a note-by-note basis, to deduct the deferred interest expense in a tax year prior to the year of disposition. You should consult your own tax advisors before making this election.

        Any market discount will be considered to accrue ratably during the period from the date of acquisition to the maturity date of the note, unless you elect to accrue on a constant interest method. You may elect to include market discount in income currently as it accrues, on either a ratable or constant interest method, in which case the rule described above regarding deferral of interest deductions will not apply.

    Acquisition Premium, Amortizable Bond Premium

        If you purchase a note for an amount that is greater than its adjusted issue price but equal to or less than its principal amount, you will be considered to have purchased that note at an "acquisition premium." Under the acquisition premium rules, the amount of OID that you must include in gross

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income with respect to a note for any taxable year will be reduced by the portion of the acquisition premium properly allocable to that year.

        If you purchase a note for an amount in excess of its principal amount, you will be considered to have purchased the note at a "premium" and you will not be required to include any OID in income. You generally may elect to amortize the premium over the remaining term of the note on a constant yield method as an offset to interest when includible in income under your regular accounting method. If you do not elect to amortize bond premium, that premium will decrease the gain or increase the loss you would otherwise recognize on disposition of the note.

    Sale, Exchange and Retirement of Notes

        Your adjusted tax basis in a note will, in general, be your cost for that note reduced by any cash payments on the note other than qualified stated interest and any amortized premium and increased by any OID or market discount previously included in income with respect to the note. Upon the sale, exchange, retirement or other disposition of a note, you will recognize gain or loss equal to the difference between the amount realized upon the sale, exchange, retirement or other disposition (less an amount equal to any accrued and unpaid qualified stated interest, which will be taxable as interest income for U.S. federal income tax purposes to the extent not previously included in income) and the adjusted tax basis of the note. Subject to the market discount rules discussed above, any gain or loss will be capital gain or loss. Capital gains of non-corporate holders derived in respect of capital assets held for more than one year are eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations.

        The exchange of the notes for registered notes in the exchange offer described herein should not constitute a taxable event.

    Non-U.S. Holders

        The following is a summary of certain U.S. federal income and estate tax consequences that will apply to you if you are a "Non-U.S. Holder" of notes. "Non-U.S. Holder" means a beneficial owner of a note, other than a partnership for U.S. federal income tax purposes, that is not a U.S. Holder (as defined under "—U.S. Holders" above).

        Special rules may apply to you if you are subject to special treatment under the Code, including if you are a "controlled foreign corporation," a "passive foreign investment company," or a U.S. expatriate. If you are such a Non-U.S. Holder, you should consult your own tax advisors to determine the U.S. federal, state, local and other tax consequences that may be relevant to you.

    U.S. Federal Withholding Tax

        Subject to the discussion below concerning backup withholding, U.S. federal withholding tax will not apply to any payment of interest (which, for purposes of this discussion, includes any OID) on a note under the "portfolio interest" rule, provided that:

    •
    interest (including OID) paid on the note is not effectively connected with your conduct of a trade or business in the United States;

    •
    you do not actually or constructively own 10% or more of the total combined voting power of all classes of our voting stock within the meaning of the Code and applicable U.S. Treasury regulations;

    •
    you are not a controlled foreign corporation that is related to Holdings through stock ownership;

    •
    you are not a bank whose receipt of interest on a note is described in Section 881(c)(3)(A) of the Code; and

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    •
    either (a) you provide your name and address on an IRS Form W-8BEN (or other applicable form), and certify, under penalties of perjury, that you are not a U.S. person or (b) you hold your notes through certain financial intermediaries and satisfy the certification requirements of applicable U.S. Treasury regulations. Special certification rules apply to Non-U.S. Holders that are pass-through entities rather than corporations or individuals.

        If you cannot satisfy the requirements of the "portfolio interest" exception described above, payments of interest (including any OID) made to you will be subject to a 30% U.S. federal withholding tax unless you provide us or our paying agent, as the case may be, with a properly executed (1) IRS Form W-8BEN (or other applicable form) claiming an exemption from or reduction in withholding under the benefit of an applicable income tax treaty or (2) IRS Form W-8ECI (or other applicable form) stating that interest paid on the note is not subject to withholding tax because it is effectively connected with your conduct of a trade or business in the U.S. (as discussed below under "—U.S. Federal Income Tax"). Alternative documentation may be applicable in certain situations. The 30% U.S. federal withholding tax generally will not apply to any payment of principal or gain that you realize on the sale, exchange, retirement or other disposition of a note.

    U.S. Federal Income Tax

        If you are engaged in a trade or business in the United States and interest on the notes is effectively connected with the conduct of that trade or business (and, if required by an applicable income tax treaty, is attributable to a U.S. permanent establishment), you will be subject to U.S. federal income tax on such interest (including any OID) on a net income basis in the same manner as if you were a U.S. person. In addition, if you are a foreign corporation, you may be subject to a branch profits tax equal to 30% (or lesser rate under an applicable income tax treaty) of your effectively connected earnings and profits attributable to such interest (including any OID), subject to adjustments. Interest (including any OID) that is effectively connected with a U.S. trade or business will be exempt from the 30% U.S. federal withholding tax, provided the certification requirements discussed above under "—U.S. Federal Withholding Tax") are satisfied.

        Any gain realized on the disposition of a note generally will not be subject to U.S. federal income tax unless:

    •
    the gain is effectively connected to your conduct of a trade or business in the Unites States (and, if required by an applicable income tax treaty, is attributable to a U.S. permanent establishment, in which case you will be taxed in the same manner as discussed above with respect to effectively connected interest), or

    •
    you are an individual who is present in the United States for 183 days or more in the taxable year of such disposition, and certain other conditions are met, in which case you will be subject to a 30% U.S. federal income tax on any gain recognized (except as otherwise provided by an applicable income tax treaty), which may be offset by certain U.S. source losses.

    U.S. Federal Estate Tax

        Your estate will not be subject to U.S. federal estate tax on notes beneficially owned by you at the time of your death, provided that any payment to you on the notes would be eligible for exemption from the 30% U.S. federal withholding tax under the "portfolio interest rule" described above under "U.S. Federal Withholding Tax," without regard to the statement requirement described in the fifth bullet point of that section.

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    Information Reporting and Backup Withholding

    U.S. Holders

        In general, information reporting requirements will apply to certain payments of interest (including any OID) and to the proceeds of a sale or other disposition (including a retirement or redemption) of a note made to you (unless you are an exempt recipient). A backup withholding tax may apply to such amounts if you fail to provide a taxpayer identification number or a certification of exempt status, or if you fail to report in full dividend and interest income.

        Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability provided the required information is furnished to the IRS.

    Non-U.S. Holders

        Information reporting will also generally apply to payments of interest (including any OID) made to you and the amount of tax, if any, withheld with respect to such payments. Copies of the information returns reporting such interest payments and any withholding may also be made available to the tax authorities in the country in which you reside under the provisions of an applicable income tax treaty.

        In general, backup withholding will not apply to payments that we make to you provided that we do not have actual knowledge or reason to know that you are a U.S. person and we have received from you the statement described above in the fifth bullet point under "—Non-U.S. Holders—U.S. Federal Withholding Tax."

        In addition, no information reporting or backup withholding will be required regarding the proceeds of a sale or other disposition (including a retirement or redemption) of our notes within the United States or conducted through certain U.S.-related financial intermediaries, if the payor receives the statement described above and does not have actual knowledge or reason to know that you are a U.S. person, or you otherwise establish an exemption.

        Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability provided the required information is furnished to the IRS.

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CERTAIN ERISA CONSIDERATIONS

        The following is a summary of certain considerations associated with the exchange of the notes by employee benefit plans that are subject to Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, "Similar Laws"), and entities whose underlying assets are considered to include "plan assets" of any such plan, account or arrangement (each, a "Plan").

General Fiduciary Matters

        ERISA and the Code impose certain duties on persons who are fiduciaries of a Plan subject to Title I of ERISA or Section 4975 of the Code (an "ERISA Plan") and prohibit certain transactions involving the assets of an ERISA Plan and its fiduciaries or other interested parties. Under ERISA, any person who exercises any discretionary authority or control over the administration of an ERISA Plan or the management or disposition of the assets of an ERISA Plan, or who renders investment advice for a fee or other compensation to an ERISA Plan, is generally considered to be a fiduciary of the ERISA Plan.

        In considering an investment in the notes (or the exchange notes) of a portion of the assets of any Plan, a fiduciary should determine whether the investment is in accordance with the documents and instruments governing the Plan and the applicable provisions of ERISA, the Code or any Similar Law relating to a fiduciary's duties to the Plan including, without limitation, the prudence, diversification, delegation of control and prohibited transaction provisions of ERISA, the Code and any other applicable Similar Laws.

Prohibited Transaction Issues

        Section 406 of ERISA and Section 4975 of the Code prohibit ERISA Plans from engaging in specified transactions involving plan assets with persons or entities who are "parties in interest," within the meaning of Section 3(14) of ERISA, or "disqualified persons," within the meaning of Section 4975 of the Code, unless an exemption is available. A party in interest or disqualified person who engaged in a non-exempt prohibited transaction may be subject to excise taxes and other penalties and liabilities under ERISA and the Code. In addition, the fiduciary of the Plan that engaged in such a non-exempt prohibited transaction may be subject to penalties and liabilities under ERISA and the Code. The acquisition and/or holding of outstanding notes or exchange notes by an ERISA Plan with respect to which we or any guarantor is are considered a party in interest or a disqualified person may constitute or result in a direct or indirect prohibited transaction under Section 406 of ERISA and/or Section 4975 of the Code, unless the investment is acquired and is held in accordance with an applicable statutory, class or individual prohibited transaction exemption. In this regard, the U.S. Department of Labor has issued prohibited transaction class exemptions, or "PTCEs," that may apply to the acquisition and holding of the outstanding notes or the exchange notes. These class exemptions include, without limitation, PTCE 84-14 respecting transactions determined by independent qualified professional asset managers, PTCE 90-1 respecting insurance company pooled separate accounts, PTCE 91-38 respecting bank collective investment funds, PTCE 95-60 respecting life insurance company general accounts and PTCE 96-23 respecting transactions determined by in-house asset managers. In addition, Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code provide limited relief from the prohibited transaction provisions of ERISA and Section 4975 of the Code for certain transactions, provided that neither the issuer of the securities nor any of its affiliates (directly or indirectly) have or exercise any discretionary authority or control or render any investment advice with respect to the assets of any ERISA Plan involved in the transaction and provided further that the ERISA Plan pays

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no more than adequate consideration in connection with the transaction. There can be no assurance that all of the conditions of any such exemptions will be satisfied.

        Because of the foregoing, the notes should not be purchased, exchanged or held by any person investing "plan assets" of any Plan, unless such purchase and holding (and the exchange of outstanding notes for exchange notes) will not constitute a non-exempt prohibited transaction under ERISA and the Code or a similar violation of any applicable Similar Laws.

Representation

        Accordingly, by acceptance of an exchange note, each holder and subsequent transferee of a note, or any interest therein, will be deemed to have represented and warranted that either (i) no portion of the assets used by such holder or transferee to acquire or hold the notes, or any interest therein, constitutes assets of any Plan or (ii) the purchase and holding of the notes or any interest therein (and the exchange of outstanding notes for exchange notes) will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a similar violation under any applicable Similar Laws.

        The foregoing discussion is general in nature and is not intended to be all inclusive. Due to the complexity of these rules and the penalties that may be imposed upon persons involved in nonexempt prohibited transactions, it is particularly important that fiduciaries, or other persons considering purchasing the notes (or exchanging outstanding notes for exchange notes) on behalf of, or with the assets of, any Plan, consult with their counsel regarding the potential applicability of ERISA, Section 4975 of the Code and any Similar Laws to such investment and whether an exemption would be applicable to the purchase and holding of the notes (including the exchange of outstanding notes for exchange notes).

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 PLAN OF DISTRIBUTION

        Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for outstanding notes where the outstanding notes were acquired as a result of market-making activities or other trading activities. In addition, all dealers effecting transactions in the exchange notes may be required to deliver a prospectus. To the extent any such broker-dealer participates in the exchange offer, we have agreed that for a period of up to 90 days after the date of this prospectus (subject to extension pursuant to the registration rights agreement), we will make this prospectus, as amended or supplemented, available to such broker-dealer for use in connection with any such resale and will deliver as many additional copies of this prospectus and any amendment or supplement to this prospectus as such broker-dealer may request in the letter of transmittal.

        We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own accounts pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or through a combination of these methods of resale at market prices prevailing at the time of resale, at prices related to the prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any broker-dealer or the purchasers of any exchange notes. Any broker-dealer that resells exchange notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of the exchange notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any resale of exchange notes and any commissions or concessions received by these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.

        We have agreed to pay all expenses incident to the exchange offer, other than commissions or concessions of any brokers or dealers, and will indemnify the holders of outstanding notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act.


LEGAL MATTERS

        The validity of the exchange notes and the related guarantees offered hereby will be passed upon for us by Simpson Thacher & Bartlett LLP, Palo Alto, California. In rendering its opinion, Simpson Thacher & Bartlett LLP relied upon opinions of (i) Baker Hostetler as to certain matters governed by the laws of the state of Ohio, (ii) Bradley Arant Boult Cummings LLP as to certain matters governed by the laws of the state of Alabama, (iii) Brownstein Hyatt Farber Schreck, LLP as to certain matters governed by the laws of the states of California, Colorado and Nevada, (iv) Dickinson Wright PLLC as to certain matters governed by the laws of the state of Michigan, (v) Gardere Wynne Sewell LLP as to certain matters governed by the laws of the state of Texas, (vi) Greenberg Traurig, LLP as to certain matters governed by the laws of the states of Arizona, Florida, Georgia, Massachusetts, Pennsylvania and Virginia and the District of Columbia, (vii) Harris Shelton Hanover Walsh, PLLC as to certain matters governed by the laws of the states of Mississippi and Tennessee, (viii) Ice Miller LLP as to certain matters governed by the laws of the state of Indiana, (ix) Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. as to certain matters governed by the laws of the state of Arkansas, (x) Perkins Coie LLP as to certain matters governed by the laws of the states of Illinois and Washington, (xi) Quarles & Brady LLP as to certain matters governed by the laws of the state of Wisconsin, (xii) Sher Garner Cahill Richter Klein & Hilbert, L.L.C. as to certain matters governed by the laws of

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the state of Louisiana, (xiii) Shook, Hardy & Bacon LLP as to certain matters governed by the laws of the state of Kansas and (xiv) Womble Carlyle Sandridge & Rice, P.L.L.C. as to certain matters governed by the laws of the states of North Carolina and South Carolina.


EXPERTS

        The consolidated financial statements of ClubCorp Club Operations, Inc. (ClubCorp, Inc. prior to November 30, 2010) as of December 28, 2010 and December 29, 2009 and for each of the three years in the period ended December 28, 2010 included in this prospectus have been audited by Deloitte & Touche LLP, an independent registered public accounting firm. Such financial statements are included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.


WHERE YOU CAN FIND MORE INFORMATION

        We have filed with the SEC a registration statement on Form S-4 under the Securities Act with respect to the exchange notes. This prospectus, which forms a part of the registration statement, does not contain all of the information set forth in the registration statement. For further information with respect to us and the exchange notes, reference is made to the registration statement. Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete. We are not currently subject to the informational requirements of the Exchange Act. As a result of the offering of the exchange notes, we will become subject to the informational requirements of the Exchange Act, and, in accordance therewith, will file reports and other information with the SEC. The registration statements, such reports and other information can be inspected and copied at the Public Reference Room of the SEC located at Room 1580, 100 F Street, N.E., Washington D.C. 20549. Copies of such materials, including copies of all or any portion of the registration statement, can be obtained from the Public Reference Room of the SEC at prescribed rates. You can call the SEC at 1-800-SEC-0330 to obtain information on the operation of the Public Reference Room. Such materials may also be accessed electronically by means of the SEC's home page on the Internet (http://www.sec.gov). Until we commence filing such reports and other information with the SEC, we will furnish to holders of outstanding notes and prospective purchasers thereof the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act in order to permit compliance with Rule 144A in connection with resales of such notes.

        So long as we are subject to the periodic reporting requirements of the Exchange Act, we are required to furnish the information required to be filed with the SEC to the trustee and the holders of the outstanding notes. We have agreed that, even if we are not required under the Exchange Act to furnish such information to the SEC, we will nonetheless continue to furnish information that would be required to be furnished by us by Section 13 of the Exchange Act, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report thereon by their certified independent accountants to the trustee and the holders of the outstanding notes or exchange notes as if we were subject to such periodic reporting requirements. However, our reporting obligations under the indenture are not identical to the reporting obligations that we would have if we were subject to Section 13 or 15(d) of the Exchange Act. Among other differences, the indenture permits us to meet these periodic filing and information requirements within time frames that may be longer than those to which we would be subject if we were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. See "Description of Notes—Certain covenants—Reports and Other Information."

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INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors of
ClubCorp Club Operations, Inc.
Dallas, Texas

        We have audited the accompanying consolidated balance sheets of ClubCorp Club Operations, Inc. and subsidiaries (ClubCorp, Inc. and subsidiaries prior to November 30, 2010) (the "Company") as of December 28, 2010 and December 29, 2009, and the related consolidated statements of operations, comprehensive income (loss) and changes in stockholders' equity (deficit), and cash flows for each of the three years in the period ended December 28, 2010. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.

        We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

        In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of ClubCorp Club Operations, Inc. and subsidiaries (ClubCorp, Inc. and subsidiaries prior to November 30, 2010) at December 28, 2010 and December 29, 2009, and the results of their operations and their cash flows for each of the three years in the period ended December 28, 2010, in conformity with accounting principles generally accepted in the United States of America.

/s/ DELOITTE & TOUCHE LLP

Dallas, Texas
March 28, 2011

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CLUBCORP CLUB OPERATIONS, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS

For the Years Ended December 28, 2010, December 29, 2009 and December 30, 2008

(In thousands of dollars)

 
   2010   2009   2008  

REVENUES:

                    

Club operations

   $ 501,733   $ 515,388   $ 560,862  

Food and beverage

     192,022     191,778     218,960  

Other revenues

     2,882     2,467     3,637  
               
 

Total revenues

     696,637     709,633     783,459  

DIRECT AND SELLING, GENERAL, AND ADMINISTRATIVE EXPENSES:

                    

Club operating costs exclusive of depreciation

     458,241     461,260     530,152  

Cost of food and beverage sales exclusive of depreciation

     60,596     61,209     63,195  

Depreciation and amortization

     92,673     98,619     101,724  

Provision for doubtful accounts

     3,248     4,815     4,550  

(Gain) loss on disposals and acquisitions of assets

     (5,351 )   6,473     3,880  

Impairment of assets

     9,243     11,808     2,642  

Selling, general and administrative

     38,946     39,266     45,136  
               

OPERATING INCOME

     39,041     26,183     32,180  

Interest and investment income

    
714		    
2,684		    
4,290		  

Equity in earnings from unconsolidated ventures

     1,309     706     1,514  

Interest expense

     (57,165 )   (58,383 )   (94,583 )

Change in fair value of interest rate cap agreements

     (3,529 )   2,624     (10,454 )

Gain on extinguishment of debt

     334,412     —     —  

Other income

     3,929     6,006     7,387  
               

INCOME (LOSS) BEFORE INCOME TAXES

     318,711     (20,180 )   (59,666 )

INCOME TAX (EXPENSE) BENEFIT

     (57,109 )   958     17,803  
               

INCOME (LOSS) FROM CONTINUING OPERATIONS

     261,602     (19,222 )   (41,863 )

Loss from discontinued Non-Core Entities, net of income tax (expense) benefit of $(6,748), $6,844 and $957 in 2010, 2009 and 2008, respectively

     (8,779 )   (11,487 )   (4,134 )

Income (loss) from discontinued clubs, net of income tax (expense) benefit of ($3), $284 and $11,706 in 2010, 2009 and 2008, respectively

     54     (795 )   (23,584 )
               

NET INCOME (LOSS)

     252,877     (31,504 )   (69,581 )

NET INCOME ATTRIBUTABLE TO DISCONTINUED NONCORE ENTITIES NONCONTROLLING INTEREST

     1,966     2,802     —  

NET LOSS ATTRIBUTABLE TO NONCONTROLLING INTERESTS OF CONTINUING OPERATIONS

     (346 )   (36 )   (348 )
               

NET INCOME (LOSS) ATTRIBUTABLE TO CLUBCORP

   $ 254,497   $ (28,738 ) $ (69,929 )
               

Amounts attributable to ClubCorp

                    

Income (loss) from continuing operations, net of tax

  
$
261,256		  
$
(19,258
)
$
(42,211
)

Income (loss) from discontinued Non-Core Entities, net of tax

     (6,813 )   (8,685 )   (4,134 )

Income (loss) from discontinued clubs, net of tax

     54     (795 )   (23,584 )
               

Net income

   $ 254,497   $ (28,738 ) $ (69,929 )
               

See accompanying notes to consolidated financial statements

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CLUBCORP CLUB OPERATIONS, INC.

CONSOLIDATED BALANCE SHEETS

As of December 28, 2010 and December 29, 2009

(In thousands of dollars, except share and per share amounts)

 
   2010   2009  

ASSETS

              

CURRENT ASSETS:

              
 

Cash and cash equivalents

   $ 56,531   $ 73,568  
 

Restricted cash

     525     14,100  
 

Receivables, net of allowances of $3,594 and $4,074 at December 28, 2010 and December 29, 2009, respectively

     53,784     55,158  
 

Inventories

     15,630     15,078  
 

Prepaids and other assets

     15,042     11,678  
 

Deferred tax assets

     6,378     7,998  
 

Assets of discontinued Non-Core Entities (See Notes 1, 2 and 14)

     —     289,376  
           
   

Total current assets

     147,890     466,956  

Investments

     17,687     20,090  

Property and equipment, net

     1,240,577     1,253,340  

Notes receivable, net of allowances of $489 and $177 at December 28, 2010 and December 29, 2009, respectively

     2,547     4,357  

Note receivable from affiliate

     —     14,000  

Goodwill

     272,000     272,000  

Intangibles, net

     63,263     98,199  

Other assets

     36,965     34,573  
           

TOTAL ASSETS

   $ 1,780,929   $ 2,163,515  
           

LIABILITIES AND EQUITY

              

CURRENT LIABILITIES:

              
 

Current maturities of long-term debt

     11,195     9,974  
 

Membership deposits—current portion

     51,704     38,161  
 

Accounts payable

     23,837     22,740  
 

Accrued expenses

     27,081     26,122  
 

Accrued taxes

     34,675     25,068  
 

Other liabilities

     53,706     50,135  
 

Liabilities of discontinued Non-Core Entities (See Notes 1, 2 and 14)

     —     353,260  
           
   

Total current liabilities

     202,198     525,460  

Long-term debt (includes $1,971 and $1,851 related to a VIE at December 28, 2010 and December 29, 2009)

     772,079     1,391,367  

Membership deposits

     211,624     205,253  

Deferred tax liability

     244,572     212,251  

Other liabilities

     119,427     73,541  
           
   

Total liabilities

     1,549,900     2,407,872  

Commitments and contingencies (see Note 16)

              

EQUITY (DEFICIT)

              

Common stock of ClubCorp, Inc., $.01 par value, 100 shares authorized, issued and outstanding at December 29, 2009

     —     —  

Common stock of ClubCorp Club Operations, Inc., $1.00 par value, 1,000 shares authorized, issued and outstanding at December 28, 2010

     1     —  

Additional paid-in capital

     211,118     —  

Accumulated other comprehensive loss

     (2,520 )   (2,709 )

Retained earnings (deficit)

     11,781     (242,716 )
           
   

Total stockholders' equity (deficit)

     220,380     (245,425 )
           

Noncontrolling interests in consolidated subsidiaries

     10,649     1,068  
           
   

Total equity (deficit)

     231,029     (244,357 )
           

TOTAL LIABILITIES AND EQUITY

   $ 1,780,929   $ 2,163,515  
           

See accompanying notes to consolidated financial statements

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CLUBCORP CLUB OPERATIONS, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

For the Years Ended December 28, 2010, December 29, 2009 and December 30, 2008

(In thousands of dollars)

 
   2010   2009   2008  

CASH FLOWS FROM OPERATING ACTIVITIES:

                    
 

Net income (loss)

   $ 252,877   $ (31,504 ) $ (69,581 )
 

Loss from discontinued Non-Core Entities

     8,779     11,487     4,134  
 

Adjustments to reconcile net income (loss) to cash flows from operating activities:

                    
   

Depreciation

     66,267     71,918     75,197  
   

Amortization and depletion

     26,406     26,990     27,713  
   

Asset impairments

     9,243     11,808     38,070  
   

Bad debt expense

     3,561     5,146     5,006  
   

Equity in earnings from unconsolidated ventures

     (1,309 )   (706 )   (1,514 )
   

Distribution from investment in unconsolidated ventures

     3,712     2,778     3,364  
   

(Gain) loss on disposals of assets

     (5,325 )   7,203     53  
   

Gain on extinguishment of debt

     (334,412 )   —     —  
   

Amortization of debt issuance costs

     3,374     3,393     4,705  
   

Accretion of discount on member deposits

     20,114     19,513     18,113  
   

Amortization of surface rights bonus revenue

     (3,750 )   (4,782 )   (5,763 )
   

Amortization of above and below market rent intangibles

     (15 )   253     142  
   

Deferred income tax expense (benefit)

     11,640     (10,501 )   (34,795 )
   

Net change in deferred tax assets

     1,620     620     (2,451 )
   

Net change in fair value of interest rate cap agreements

     3,529     (2,624 )   10,454  
   

Net change in prepaid expenses and other assets

     (5,513 )   (338 )   4,364  
   

Net change in receivables and membership notes

     1,161     5,547     17,904  
   

Net change in accounts payable and accrued liabilities

     4,504     (7,402 )   (24,224 )
   

Net change in other current liabilities

     12,818     13,022     (8,695 )
   

Net change in long-term tax liabilities

     66,727     (2,334 )   3,421  
   

Net change in other long-term liabilities

     2,400     4,747     16,023  
               
     

Net cash provided by operating activities

     148,408     124,234     81,640  
               

CASH FLOWS FROM INVESTING ACTIVITIES:

                    
   

Purchase of property and equipment

     (42,859 )   (32,382 )   (89,778 )
   

Acquisitions

     (7,443 )   —     —  
   

Proceeds from real estate ventures

     —     1,000     —  
   

Proceeds from dispositions

     3,357     2,448     178  
   

Proceeds from surface rights

     —     —     19,869  
   

Proceeds from insurance

     2,530     5,167     9,853  
   

Net change in restricted cash and capital reserve funds

     13,616     (4,349 )   12,259  
   

Proceeds from notes receivable

     14,000     296     108  
               
     

Net cash used in investing activities

     (16,799 )   (27,820 )   (47,511 )
               

See accompanying notes to consolidated financial statements

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CLUBCORP CLUB OPERATIONS, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)

For the Years Ended December 28, 2010, December 29, 2009 and December 30, 2008

(In thousands of dollars)

 
   2010   2009   2008  

CASH FLOWS FROM FINANCING ACTIVITIES:

                    
   

Repayments of long-term debt

     (906,770 )   (128,197 )   (42,222 )
   

Proceeds from new debt borrowings

     730,071     11     10,610  
   

Repayments of Revolver

     (105,305 )   (197 )   (209,000 )
   

Proceeds from Revolver borrowings

     —     2,560     312,000  
   

Purchase of interest rate cap agreement

     (208 )   —     (10,104 )
   

Sale of interest rate cap agreement

     150     576     —  
   

Debt issuance costs

     (16,819 )   —     (1,160 )
   

Distribution to owners

     —     (90,364 )   —  
   

Contribution from owners

     260,528     —     190  
   

Distribution to noncontrolling interests

     (416 )   (588 )   —  
   

Distribution to KSL affiliates attributable to the ClubCorp Formation

     (37,047 )   —     —  
   

Change in membership deposits

     1,480     311     2,877  
               
     

Net cash (used in) provided by financing activities

     (74,336 )   (215,888 )   63,191  
               

CASH FLOWS FROM DISCONTINUED NON-CORE ENTITIES:

                    
   

Net cash provided by operating activities of discontinued Non-Core Entities

     192,203     8,704     6,778  
   

Net cash used in investing activities of discontinued Non-Core Entities

     (35 )   (2,732 )   (10,768 )
   

Net cash (used in) provided by financing activities of discontinued Non-Core Entities

     (266,054 )   (25,827 )   16,539  
               
     

Net cash (used in) provided by discontinued Non-Core Entities

     (73,886 )   (19,855 )   12,549  
               

EFFECT OF EXCHANGE RATE CHANGES ON CASH

     (820 )   (1,074 )   5,972  
               

NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS

     (17,433 )   (140,403 )   115,841  

CASH AND CASH EQUIVALENTS—BEGINNING OF PERIOD

     73,964     214,367     98,526  
               

CASH AND CASH EQUIVALENTS—END OF PERIOD

   $ 56,531   $ 73,964   $ 214,367  
               

SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:

                    
     

Cash paid during the year for interest

   $ 36,679   $ 42,503   $ 86,208  
               
     

Cash paid during the year for income taxes

   $ 6,091   $ 6,464   $ 4,670  
               

Non-cash investing and financing activities are as follows:

                    
     

Capital lease

   $ 6,534   $ 4,875   $ 14,400  
     

Capital accruals

   $ 565   $ 2,548   $ 4,568  
     

Leasehold improvements

   $ 3,996   $ —   $ 3,930  

Cash and cash equivalents

                    
     

Continuing operations

   $ 56,531   $ 73,568   $ 213,289  
     

Discontinued Non-Core Entities

   $ —   $ 396   $ 1,078  

See accompanying notes to consolidated financial statements

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CLUBCORP CLUB OPERATIONS, INC.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS) AND CHANGES IN
STOCKHOLDERS' EQUITY (DEFICIT)

For the Years Ended December 28, 2010, December 29, 2009 and December 30, 2008

(In thousands of dollars)

 
   Total   Common
Stock 		  Additional
Paid-in
Capital 		  Comprehensive
Income (Loss) 		  Retained
Earnings
(Deficit) 		  Noncontrolling
Interests in
Consolidated
Subsidiaries 		 

BALANCE—DECEMBER 25, 2007

   $ (40,977 ) $ —   $ 480   $ 1,693   $ (54,172 ) $ 11,022  
                           
   

Net (loss) income

     (69,581 )   —     —     —     (69,929 )   348  
   

Change in fair value of net pension plan assets, net

                                      
     

of taxes of $3.1 million

     (4,730 )   —     —     (4,730 )   —     —  
   

Foreign currency translation adjustments

     (793 )   —     —     (793 )   —     —  
                           
 

Comprehensive (loss) income

     (75,104 )   —     —     (5,523 )   (69,929 )   348  
 

Additional equity contribution

     7     —     190     —     (183 )   —  
                           

BALANCE—DECEMBER 30, 2008

   $ (116,074 )   —   $ 670   $ (3,830 ) $ (124,284 ) $ 11,370  
                           
   

Net loss

     (31,504 )   —     —     —     (28,738 )   (2,766 )
   

Change in fair value of net pension plan assets, net

                                      
     

of taxes of $1.0 million

     1,171     —     —     990     —     181  
   

Foreign currency translation adjustments

     47     —     —     131     —     (84 )
                           
 

Comprehensive (loss) income

     (30,286 )   —     —     1,121     (28,738 )   (2,669 )
 

Distribution to owners

     (90,364 )   —     (670 )   —     (89,694 )   —  
 

Distributions to noncontrolling interests

     (7,633 )   —     —     —     —     (7,633 )
                           

BALANCE—DECEMBER 29, 2009

   $ (244,357 )   —   $ —   $ (2,709 ) $ (242,716 ) $ 1,068  
                           
 

ClubCorp Formation

                                      
 

Issuance of Common Stock: ClubCorp Club Operations, Inc. Formation

     1     1                          
 

Contribution from owners attributable to the ClubCorp Formation

     260,528     —     260,528     —     —     —  
 

Distributions to KSL affililates attributable to the ClubCorp Formation

     (37,047 )   —     (49,410 )   881     —     11,482  
   

Net income (loss)

    
252,877		    
—		    
—		    
—		    
254,497		    
(1,620
)
   

Foreign currency translation adjustments

     189     —     —     189     —     —  
   

Change in fair value of net pension plan assets, net

                                      
     

of taxes of $0.5 million

     (746 )   —     —     (881 )   —     135  
                           
 

Comprehensive income (loss)

     252,320     —     —     (692 )   254,497     (1,485 )
 

Distributions to noncontrolling interests

     (416 )   —     —     —     —     (416 )
                           

BALANCE—DECEMBER 28, 2010

   $ 231,029   $ 1   $ 211,118   $ (2,520 ) $ 11,781   $ 10,649  
                           

See accompanying notes to consolidated financial statements

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(amounts in thousands, unless otherwise indicated)

1. ORGANIZATION

        ClubCorp Club Operations, Inc. ("ClubCorp") is a holding company that was formed on November 30, 2010, as part of a reorganization of ClubCorp, Inc. ("CCI") for the purpose of operating and managing golf, country, business, sports and alumni clubs. ClubCorp has two reportable segments (1) golf and country clubs and (2) business, sports and alumni clubs. ClubCorp is a wholly-owned subsidiary of CCA Club Operations Holdings, LLC ("Parent"), which is a wholly owned subsidiary of ClubCorp Holdings, Inc. ("Holdings"). ClubCorp, collectively, may be referred to as "we," "us," "our," or the "Company," and is principally owned by Holdings which is owned by affiliates of KSL Capital Partners, LLC ("KSL"), a private equity fund that invests primarily in the hospitality and leisure business. For periods prior to November 30, 2010, references to as "we," "us," "our," or the "Company" refer to CCI.

        Prior to November 30, 2010, CCI was a holding company that through its subsidiaries owned and operated golf, country, business, sports and alumni clubs, two full-service resorts and certain other equity and realty interests. The two full service resorts and such other equity, realty and future royalty interests are referred to as the "Non-Core Entities."

2. CLUBCORP FORMATION

        On November 30, 2010, the following transactions ("ClubCorp Formation") occurred which were structured to complete the contribution of the golf, country, business, sports and alumni clubs into ClubCorp. A summary of the transactions relevant to ClubCorp are described below:

    •
    Fillmore CCA Holdings, Inc. ("Fillmore Inc."), an affiliate of KSL, formed two wholly owned subsidiaries, ClubCorp and Parent, and transferred its interests through a contribution of 100% of the stock of CCI to ClubCorp.

    •
    Investment vehicles controlled by KSL contributed $260.5 million as equity capital to ClubCorp.

    •
    Fillmore Inc. reincorporated in Nevada through a merger into a newly formed Nevada corporation, Holdings, with Holdings as the surviving entity. CCI merged into ClubCorp USA, Inc. ("CCUSA"), with CCUSA surviving as a wholly-owned subsidiary of ClubCorp.

    •
    ClubCorp issued and sold $415.0 million of unsecured notes and borrowed $310.0 million of secured term loans under our new secured credit facilities.

    •
    ClubCorp sold its Non-Core Entities to affiliates of KSL.

    •
    ClubCorp repaid a portion of the loans under its then existing secured credit facilities. The lenders under such facilities forgave the remaining $342.3 million of debt owed under such facilities and such facilities were terminated.

    •
    ClubCorp settled certain balances owed to affiliates of KSL.

        ClubCorp owns or leases and consolidates 93 golf and country clubs in the United States and Mexico and 50 business, sports and alumni clubs throughout the United States. We manage five golf and country clubs primarily in the South and South-central United States, and manage five business, sports and alumni clubs in the United States and China. We have ownership interests in certain of these managed clubs.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

        Basis of Presentation—The consolidated financial statements reflect the consolidated operations of ClubCorp and its subsidiaries subsequent to November 30, 2010. Periods presented prior to November 30, 2010 reflect the consolidated operations and financial position of CCI.

        The consolidated financial statements presented herein reflect our financial position, results of operations, cash flows and changes in stockholders' equity (deficit) in conformity with accounting principles generally accepted in the United States, or GAAP. All intercompany accounts have been eliminated.

        Use of Estimates—The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America ("GAAP") requires us to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could differ materially from such estimated amounts.

        Fiscal Year—Our fiscal year consists of a 52/53 week period ending on the last Tuesday of December. For 2010 and 2009, the fiscal years are comprised of the 52 weeks ended December 28, 2010 and December 29, 2009, respectively. For 2008, the fiscal year is comprised of the 53 weeks ended December 30, 2008.

        Revenue Recognition—Revenues from club operations, food and beverage and merchandise sales are recognized at the time of sale or when the service is provided and are reported net of sales taxes.

        Revenues from membership dues are billed monthly and recognized in the period earned. The monthly dues are expected to cover the cost of providing membership services. Prepaid dues are recognized as income over the prepayment period.

        The majority of membership deposits sold is not refundable until a fixed number of years (generally 30) after the date of acceptance of a member. We recognize revenue related to deposits over the average expected life of an active membership. For membership deposits, the difference between the amount paid by the member and the present value of the refund obligation is deferred and recognized as membership fees and deposits revenue on a straight-line basis over the average expected life of an active membership, which is seven years for golf memberships and five years for business, sports and alumni club memberships for the periods presented. The present value of the refund obligation is recorded as a membership deposit liability in the consolidated balance sheets and accretes over the nonrefundable term using the effective interest method with an interest rate defined as our weighted average borrowing rate adjusted to reflect a 30-year time frame. The accretion is included in interest expense.

        The majority of membership fees is not refundable and is deferred and recognized over the average expected life of an active membership.

        Cash Equivalents—We consider all investments with an original maturity of three months or less to be cash equivalents.

        Restricted Cash—We have restricted cash of $0.5 million and $14.1 million at December 28, 2010 and December 29, 2009, respectively. Of these amounts: (i) $0.5 million and $0 at December 28, 2010 and December 29, 2009, respectively, are deposited in an escrow account to cover certain potential construction costs, (ii) $0 and $8.2 million at December 28, 2010 and December 29, 2009, respectively, are deposited in an escrow account to cover property taxes and insurance in conjunction with the 2006

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)


Citigroup debt facility discussed in Note 11, (iii) $0 and $4.4 million at December 28, 2010 and December 29, 2009, respectively, are being held under Mexican government order due to a settled lawsuit, and (iv) $0 and $1.5 million at December 28, 2010 and December 29, 2009, respectively, are deposited in an escrow account as collateral for our purchasing card program. The fair value of restricted cash approximates its carrying value.

        Allowance for Doubtful Accounts—The allowance for doubtful accounts is established and maintained based on our best estimate of accounts receivable collectability. Management estimates collectability by specifically analyzing known troubled accounts, accounts receivable aging and other historical factors that affect collections. Such factors include the historical trends of write-offs and recovery of previously written-off accounts, the financial strength of the member and projected economic and market conditions. The evaluation of these factors involves subjective judgments and changes in these factors may significantly impact the consolidated financial statements. The allowance balance detail follows (dollars in thousands):

 
   2010   2009   2008  

Beginning allowance

   $ 4,074   $ 3,792   $ 3,052  

Bad debt expense, excluding portion related to notes receivable

     3,488     5,074     4,825  

Write offs

     (3,968 )   (4,792 )   (4,085 )
               
 

Ending allowance

   $ 3,594   $ 4,074   $ 3,792  
               

        Inventories—Inventories, which consist primarily of food and beverages and merchandise held for resale, are stated at the lower of cost (weighted average cost method) or market. Losses on obsolete or excess inventory are not material.

        Investments—We have consolidated certain subsidiaries under our control in accordance with FASB ASC Topic 810. Investments in unconsolidated affiliates over which we exercise significant influence, but do not control, are accounted for by the equity method. Investments in unconsolidated affiliates over which we are not able to exercise significant influence are accounted for under the cost method. See Note 5.

        Property and Equipment, Net—Property and equipment is recorded at cost, including interest incurred during construction periods. We capitalize costs that both materially add value and appreciably extend the useful life of an asset. With respect to golf course improvements (included in land improvements), only costs associated with original construction, complete replacements, or the addition of new trees, sand traps, fairways or greens are capitalized. All other related costs are expensed as incurred. For building improvements, only costs that extend the useful life of the building are capitalized; costs such as repainting, repairs and maintenance are expensed as incurred. See Note 7.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        Depreciation is calculated using the straight-line method based on the following estimated useful lives:

Depreciable land improvements

   5 - 20 years

Building and recreational facilities

   40 years

Machinery and equipment

   3 - 10 years

Leasehold improvements

   1 - 10 years

Furniture and fixtures

   3 - 10 years

        Leasehold improvements are amortized over the shorter of the term of the respective leases or their useful life using the straight-line method.

        Notes Receivable, Net of Allowances—These receivables reflect amounts due from our financing of membership initiation fees and deposits and span 13 months to 10 years and 6 months in maturity. We recognize interest income as earned and provide an allowance for doubtful accounts. This allowance is based on factors including the historical trends of write-offs and recoveries, the financial strength of the member and projected economic and market conditions.

        Goodwill and Other Intangibles, Net—We classify intangible assets into three categories: (1) intangible assets with definite lives subject to amortization, (2) intangible assets with indefinite lives not subject to amortization, and (3) goodwill. Intangibles specifically related to an individual property are recorded at the property level. Intangible assets with finite lives are amortized on a straight-line basis over their estimated useful lives as reflected in Note 8.

        We assess the recoverability of the carrying value of goodwill and other indefinite lived intangibles annually on the first day of the fourth quarter or whenever events or changes in circumstances indicate that the carrying amount may not be fully recoverable. Goodwill impairment is determined by comparing the fair value of a reporting unit to its carrying amount with an impairment being recognized only where the fair value is less than carrying value. See Note 8.

        Other Assets—We own certain assets related to mineral interests on various golf properties and have entered into lease agreements with third parties allowing them to explore for and produce oil and natural gas. These assets are being depleted using the percentage depletion method based on actual production and totaled $5.4 million and $6.2 million at December 28, 2010 and December 29, 2009, respectively. During 2008, we entered into certain surface right agreements with third parties to allow for exploration and production on these properties. We received $19.9 million which is classified as other current and long term liabilities in the consolidated balance sheets and is being recognized in other income in the consolidated statements of operations on a straight line basis over the term of the agreements, which range from six months to four years.

        Other assets also includes capital reserve funds, debt issuance costs, interest rate swap derivatives, liquor licenses, below market lease intangibles and property taxes escrowed in connection with the sale of Non-Core Entities.

        Impairment of Long-Lived Assets—We evaluate long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable through future cash flows. For assets to be held and used, we perform a recoverability test to determine if the future undiscounted cash flows over the expected holding period for the property exceed the

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)


carrying amount of the assets of the property in question. If the recoverability test is not met, fair value is determined by comparing the carrying value of the property to its future discounted cash flows using a risk-adjusted discount rate. Future cash flows of each property are determined using management's projections of the performance of a given property based on its past performance and expected future performance given changes in marketplace, local operations and other factors both in the Company's control and out of the Company's control. Additionally, we review current property appraisals when available to ensure recoverability. If actual results differ from these estimates, additional impairment charges may be required. As discussed in Note 6, FASB ASC Topic 820 establishes a three-tiered fair value hierarchy that prioritizes inputs to valuation techniques used in fair value calculations. The fair value test for impairment of long-lived assets is classified as a Level 3 measurement under FASB ASC Topic 820.

        Business Interruption Insurance—In the case of a property loss, we are covered by property insurance which includes a business interruption clause. Business interruption insurance covers both our fixed costs incurred during the period of interruption, and lost revenue, profit or margin. We recognize insurance proceeds related to lost revenue when realized. Due to the complex and uncertain nature of the settlement negotiations process, this generally occurs at the time of final settlement. We recorded $0, $0.8 million and $0.9 million in business interruption proceeds related to losses due to property casualty events in other income for the fiscal years ended December 28, 2010, December 29, 2009 and December 30, 2008, respectively.

        Derivative Instruments and Hedging Activities—We record all derivative instruments on the balance sheet at fair value. We do not use hedge accounting and therefore mark-to-market derivative instruments associated with the debt facility quarterly for external reporting purposes. The mark-to-market is based upon third party valuations of the derivatives recognizing in the consolidated statements of operations any change in fair value for the period. See Notes 6 and 11. Derivatives are recorded in other assets on the consolidated balance sheets.

        Foreign Currency—The functional currency of our entities located outside the United States of America is the local currency. Assets and liabilities denominated in foreign currencies are translated into U.S. dollars at the current exchange rate in effect at year-end. All foreign income and expenses are translated at the monthly weighted-average exchange rates during the year. Translation gains and losses are reported separately as a component of comprehensive loss. Realized foreign currency transaction gains and losses are reflected in the consolidated statement of operations in club operating costs.

        Income Taxes—We record income taxes in accordance with FASB ASC Topic 740-10. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recognized.

        Interest and Investment Income—Interest and investment income is comprised principally of interest on notes receivable, cash deposits held by financial institutions, and marketable securities.

        Leases—We lease operating facilities under agreements with terms ranging from 1 to 60 years. These agreements normally provide for minimum rentals plus executory costs. Some of the agreements

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)


provide for scheduled rent increases during the lease term, as well as provisions for renewal options. Rent expense is recognized on a straight-line basis over the term of the lease from the time at which we take possession of the property. Renewal options determined to be reasonably assured are also included in the lease term. In some cases, we must pay contingent rent generally based on a percentage of gross receipts or positive cash flow as defined in the lease agreements.

        Some of our lease agreements contain tenant allowances. Upon receipt of such allowances, we record a deferred rent liability in other liabilities on the Consolidated Balance Sheets. The allowances are then amortized on a straight-line basis over the remaining terms of the corresponding leases as a reduction of rent expense.

Recently Issued Accounting Pronouncements

        Portions of Accounting Standards related to "Improving Disclosures about Fair Value Measurements" became effective for interim and annual reporting periods beginning after December 15, 2009. This standard requires disclosures of significant transfers in or out of Level 1 and Level 2 fair value measurements, as well as the reasons for the transfers. We adopted this portion of the standard with no material impact to our consolidated financial statements. Additionally, a portion of the standard is effective for interim and annual reporting periods beginning after December 15, 2010. This portion requires disclosure of purchases, sales, issuances and settlements in the reconciliation of Level 3 fair value measurements, as well as more detailed disclosures of Level 3 inputs. The impact of the adoption of this portion of the standard will require expanded disclosures in our 2011 consolidated financial statements.

        In July 2010, the FASB released Accounting Standards Update No. 2010-20 ("ASU 2010-20"), Disclosures about the Credit Quality of Financing Receivables and the Allowance for Credit Losses. The update requires companies to enhance disclosure about the credit quality of financing receivables and the allowance for credit losses, including credit quality indicators, past due information and modifications of financing receivables. ASU 2010-20 became effective for interim and annual reporting periods ending on or after December 15, 2010. We adopted this standard with no material impact on the consolidated financial statements.

        Accounting Standards related to "Amendments to FASB Interpretation No. 46(R)" became effective for interim and annual reporting periods beginning after November 15, 2009. This standard changes how a company determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether the company is required to consolidate an entity is based on, among other things, an entity's purpose and design and a company's ability to direct the activities of the entity that most significantly impact the entity's economic performance. We adopted these amendments with no material impact on the consolidated financial statements.

        In June 2009, the FASB issued SFAS No. 168, The FASB Accounting Standards Codification™ and the Hierarchy of Generally Accepted Accounting Principles—a replacement of FAS 162 ("SFAS 168"), which created FASB ASC Topic 105-10. FASB ASC Topic 105-10 identifies the sources of accounting principles and the framework for selecting principles used in the preparation of financial statements of nongovernmental entities that are presented in conformity with US GAAP (the GAAP hierarchy). As a result of our adoption of SFAS 168 in 2009, we now refer to the new codification in our discussion of accounting standards.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        In December 2007, the FASB issued Statement of Financial Accounting Standards No. 160, Noncontrolling Interests in Consolidated Financial Statements—An amendment of ARB No. 51 ("SFAS 160"), which is codified in FASB ASC Topic 810-10-65. This Statement amends Accounting Research Bulletin 51 to establish accounting and reporting standards for the noncontrolling interests in a subsidiary and for the deconsolidation of a subsidiary. It clarifies that noncontrolling interests in a subsidiary, which are sometimes referred to as minority interests, are ownership interests in the consolidated entity that should be reported as equity in the consolidated financial statements. Among other requirements, this Statement requires consolidated net income to be reported at amounts that include the amounts attributable to both the parent and the noncontrolling interests. The Statement also requires retrospective application of these changes in the consolidated financial statements. We adopted this Standard as of December 31, 2008.

        In May 2009, the FASB issued SFAS No. 165, Subsequent Events ("SFAS 165"), which is codified in FASB ASC Topic 855-10, which establishes accounting and disclosure standards for events that occur after the balance sheet date but before financial statements are issued or are available to be issued. It defines financial statements as available to be issued, requiring the disclosure of the date through which an entity has evaluated subsequent events and the basis for that date, whether it be the date the financial statements were issued or the date they were available to be issued. We have evaluated subsequent events for recognition or disclosures in our consolidated financial statements through March 28, 2011, the date these financial statements were issued.

4. VARIABLE INTEREST ENTITIES

        Consolidated VIEs include three managed golf operations. We have determined we are the primary beneficiary of these VIEs as we have the obligation to absorb the majority of losses from these operations. One of these VIEs is financed through a loan payable of $1.5 million collateralized by assets of the entity totaling $4.2 million as of December 28, 2010. The other VIEs are financed through advances from us. Outstanding advances as of December 28, 2010 total $2.7 million compared to recorded assets of $6.9 million.

        The following summarizes the carrying amount and classification of the VIEs' assets and liabilities in the consolidated balance sheets as of December 28, 2010 and December 29, 2009, net of intercompany amounts:

 
   2010   2009  

Current assets

   $ 807   $ 889  

Fixed assets, net

     10,207     10,100  

Other assets

     54     96  
           
 

Total assets

   $ 11,068   $ 11,085  
           

Current liabilities

   $ 763   $ 744  

Long-term debt

     1,971     1,851  

Other liabilities

     582     546  

Noncontrolling interest

     6,283     6,455  

Company capital

     1,469     1,489  
           
 

Total liabilities and deficit

   $ 11,068   $ 11,085  
           

        Recourse of creditors to the three VIEs is limited to the assets of the managed golf operations and their management entities, which total $11.1 million.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

5. INVESTMENTS

        Equity method investments in golf and business club ventures total $2.1 million and $2.5 million at December 28, 2010 and December 29, 2009, respectively, and include two golf club joint ventures and one business club joint venture. Our share of earnings in the equity investments is included in equity in earnings from unconsolidated ventures in the consolidated statements of operations. The difference between the carrying value of the investments and our share of the equity reflected in the joint ventures' financial statements at the time of the acquisition of the Company by KSL was allocated to intangible assets of the joint ventures and amortized over approximately 20 years beginning in 2007.

        Additionally, we have one equity method investment in a purchasing cooperative of hospitality companies. The carrying value of the investment is $15.0 million at December 28, 2010. Our share of earnings in the equity investment, excluding amortization of $2.0 million annually, of $3.3 million, $2.6 million and $3.4 million for the fiscal years ended December 28, 2010, December 29, 2009 and December 30, 2008 respectively, is included in equity in earnings in unconsolidated ventures in the consolidated statements of operations. We have contractual agreements with the joint venture to provide procurement services for our clubs for which we received volume rebates totaling $1.2 million, $2.5 million and $2.2 million for 2010, 2009 and 2008, respectively. The difference between the carrying value of the investment and our share of the equity reflected in the joint ventures' financial statements at the time of the acquisition of the Company by KSL was allocated to intangible assets of the joint ventures and amortized over approximately 10 years beginning in 2007.

        Significant financial information for the investment described in the paragraph above for the years ended December 28, 2010, December 29, 2009 and December 30, 2008, is as follows:

 
   2010   2009  
 
   (unaudited)
  

Total assets

   $ 82,400   $ 70,110  

Total liabilities

   $ 71,378   $ 44,507  

Total equity

   $ 11,022   $ 25,603  

 

 
   2010   2009   2008  
 
   (unaudited)  

Total revenues

   $ 74,981   $ 66,744   $ 73,297  

Net income

   $ 31,030   $ 28,780   $ 34,423  

 
 
2010
 
2009
 
2008
 

ClubCorp's equity in net income, excluding amortization

   $ 3,302   $ 2,633   $ 3,422  

6. FAIR VALUE

        FASB ASC Topic 820 establishes a three-tiered fair value hierarchy that prioritizes inputs to valuation techniques used in fair value calculations. The three levels of inputs are defined as follows:

            Level 1—unadjusted quoted prices for identical assets or liabilities in active markets accessible by the Company

            Level 2—inputs that are observable in the marketplace other than those inputs classified as Level 1

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

6. FAIR VALUE (Continued)

            Level 3—inputs that are unobservable in the marketplace and significant to the valuation

        FASB ASC Topic 820 requires us to maximize the use of observable inputs and minimize the use of unobservable inputs. If a financial instrument uses inputs that fall in different levels of the hierarchy, the instrument is categorized based upon the lowest level of input that is significant to the fair value calculation.

        Marketable securities and derivative financial instruments are measured at fair value on a recurring basis. Marketable securities include interest bearing deposits at financial institutions, and investments in money market funds comprised of U.S. treasury bills. Derivative financial instruments include interest rate cap agreements. The carrying value of other financial instruments including cash, cash equivalents, receivables, notes receivable, accounts payable and other short-term assets and liabilities approximate their fair values as December 28, 2010 and December 29, 2009. We currently do not have non-financial assets or non-financial liabilities that are required to be measured at fair value on a recurring basis.

        Marketable Securities—We utilize quoted prices in active markets to measure investments in money market funds comprised of U.S. treasury bills; such items are classified as Level 1 in the hierarchy. Balances of investments in money market funds totaled $48.8 million and $57.3 million as of December 28, 2010 and December 29, 2009, respectively.

        Derivative Financial Instruments—Derivative financial instruments are valued in the market based on prevailing market data and values are derived from proprietary models based on well recognized financial principles and reasonable estimates about relevant future market conditions and certain counter-party credit risk. These inputs are classified as Level 2 in the hierarchy.

        A reconciliation of beginning and ending balances of these derivatives is presented in Note 11.

        See Note 11 for Level 3 disclosure of debt fair value.

        We value goodwill and trade name at fair value on a non-recurring basis. See Note 8. The fair value test for impairment of long-lived assets is classified as a Level 3 measurement under FASB ASC Topic 820.

7. PROPERTY AND EQUIPMENT

        Property and equipment at cost consists of the following at fiscal year-end:

 
   2010   2009  

Land and land improvements

   $ 828,564   $ 819,774  

Buildings and recreational facilities

     394,472     381,772  

Machinery and equipment

     134,246     123,308  

Leasehold improvements

     72,382     67,535  

Furniture and fixtures

     49,642     45,012  
           
 

Depreciable fixed assets

     1,479,306     1,437,401  

Accumulated depreciation and amortization

     (246,133 )   (189,346 )
           
 

Depreciable fixed assets, net

     1,233,173     1,248,055  

Construction in progress

     7,404     5,285  
           
 

Property and equipment, net

   $ 1,240,577   $ 1,253,340  
           

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

7. PROPERTY AND EQUIPMENT (Continued)

        Depreciation expense from continuing operations was $66.3 million, $71.7 million and $74.4 million for the years ended December 28, 2010, December 29, 2009 and December 30, 2008, respectively. Interest capitalized as a cost of property and equipment totaled $0.1 million, $0.1 million and $1.0 million for the years ended December 28, 2010, December 29, 2009 and December 30, 2008, respectively.

        For the years ended December 28, 2010 and December 29, 2009, we recorded impairments of $0.6 million and $2.3 million, respectively, due to continued and projected negative operating cash flows as well as changes in the expected holding period of certain fixed assets. For the year ended December 30, 2008, we recorded impairment of $0.2 million related to one property due to changes in the expected holding periods of assets.

8. GOODWILL AND INTANGIBLE ASSETS

        Intangible assets consist of the following at December 28, 2010 and December 29, 2009:

 
    
   2010   2009  
Asset
  Useful Life   Gross Carrying
Amount 		  Accumulated
Amortization 		  Net Carrying
Amount 		  Gross Carrying
Amount 		  Accumulated
Amortization 		  Net Carrying
Amount 		 

Intangible assets with indefinite lives:

                                          
 

Trademarks

       $ 25,260   $ —   $ 25,260   $ 33,850   $ —   $ 33,850  

Intangible assets with finite lives:

                                          
 

Membership Relationships

   5 - 7 years     133,211     (96,630 )   36,581     133,473     (72,539 )   60,934  
 

Management Contracts

   2 - 9 years     4,375     (3,501 )   874     4,760     (3,524 )   1,236  
 

Other

   4 - 7 years     7,064     (6,516 )   548     7,064     (4,885 )   2,179  
                               

Total

       $ 169,910   $ (106,647 ) $ 63,263   $ 179,147   $ (80,948 ) $ 98,199  
                               

Goodwill

       $ 272,000   $ —   $ 272,000   $ 272,000   $ —   $ 272,000  
                               

        Intangible asset amortization expense was $26.3 million, $26.8 million and $27.5 million in the years ended December 28, 2010, December 29, 2009 and December 30, 2008, respectively. We have incurred no costs to renew or extend the lives of intangible assets.

        For each of the five years subsequent to 2010 and thereafter the amortization expense will be as follows (dollars in thousands):

Year
  Amount  

2011

   $ 24,964  

2012

     9,819  

2013

     2,855  

2014

     325  

2015

     40  

Thereafter

     —  
       
 

Total

   $ 38,003  
       

        As discussed in Note 6, FASB ASC Topic 820 establishes a three-tiered fair value hierarchy that prioritizes inputs to valuation techniques used in fair value calculations. We test our trade name

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

8. GOODWILL AND INTANGIBLE ASSETS (Continued)


intangible assets utilizing the relief from royalty method to determine the estimated fair value for each trade name which is classified as a Level 3 measurement under FASB ASC Topic 820. The relief from royalty method estimates our theoretical royalty savings from ownership of the intangible asset. Key assumptions used in this model include discount rates, royalty rates, growth rates, sales projections and terminal value rates.

        We recorded impairment of trade names of $8.6 million, $9.4 million and $2.4 million in the years ended December 28, 2010, December 29, 2009 and December 30, 2008, respectively, included in impairment of assets on the consolidated statement of operations. We recorded impairment of membership relationships of $0.1 million, $0 and $0 in the years ended December 28, 2010, December 29, 2009 and December 30, 2008, respectively, also included in impairment of assets on the consolidated statement of operations.

        We evaluate goodwill for impairment at the reporting unit level (golf and country clubs and business, sports and alumni clubs). When testing for impairment, we first compare the fair value of our reporting units to the recorded values. Reporting units are defined as an operating segment or one level below. Valuation methods used to determine fair value include analysis of the discounted future free cash flows that a reporting unit is expected to generate ("Income Approach") and an analysis is based upon a comparison of reporting units to similar companies utilizing a purchase multiple of earnings before interest, taxes, depreciation and amortization ("Market Approach"). These valuations are considered Level 3 measurements under FASB ASC Topic 820. We utilize estimates to determine the fair value of the reporting units such as future cash flows, growth rates, capital needs and projected margins, among other factors.

        If the carrying amount of the reporting units exceeds its fair value, goodwill is considered potentially impaired and a second step is performed to measure the amount of impairment loss. In the second step of the goodwill impairment test, we compare the implied value of the reporting units goodwill with carrying value of that unit's goodwill. If the carrying value of the reporting unit's goodwill exceeds the implied value, an impairment loss is recognized in an amount equal to that excess. The implied fair value of goodwill is determined in the same manner as the amount of goodwill recognized in a business combination under FASB ASC Topic 810. Accordingly, the fair value of a reporting unit is allocated to all the assets and liabilities of that unit, including intangible assets, and any excess of the value of the reporting unit over the amounts assigned to its assets and liabilities is the implied value of its goodwill.

        We test goodwill for impairment as of the first day of our last fiscal quarter. Based on this analysis, no impairment of goodwill was recorded for all years presented. Estimates utilized in the future evaluations of goodwill for impairment could differ from estimates used in the current period calculations. Unfavorable future estimates could result in an impairment of goodwill.

        As of December 28, 2010, ClubCorp had allocated $119.8 million of goodwill to the golf and country club segment and $152.2 million of goodwill to the business, sports and alumni club segment. During 2009, we reduced goodwill by $0.2 million in connection with the divestiture of a business, sports and alumni club. See Note 14.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

9. OTHER ASSETS

        As a result of our acquisition by KSL in 2006, we have recorded above and below market lease intangibles. The above market lease intangibles totaled $3.8 million in 2010 and $5.7 million in 2009 and are recorded in other liabilities; below market lease intangibles were $3.5 million in 2010 and $4.7 million in 2009 and are recorded in other assets. Amortization of the net above/below market lease intangibles is recorded as a net (increase) reduction in rent expense.

        Related net amortization (accretion) over the next 5 years and thereafter is as follows (dollars in thousands):

Year
  Amount  

2011

     (233 )

2012

     (253 )

2013

     (114 )

2014

     365  

2015

     256  

Thereafter

     352  
       
 

Total

   $ 373  
       

10. CURRENT AND LONG-TERM LIABILITIES

        Current liabilities consist of the following at year-end:

 
   2010   2009  

Accrued compensation

   $ 14,764   $ 14,049  

Accrued interest

     4,881     2,898  

Other accrued expenses

     7,436     9,175  
           
 

Total accrued expenses

     27,081     26,122  

Taxes payable

    
23,799		    
24,343		  

Taxes payable to Holdings

     10,876     —  

Taxes payable to Fillmore Inc. 

     —     725  
           
 

Total accrued income taxes

     34,675     25,068  

Advance deposits from members

    
14,710		    
11,740		  

Prepaid dues

     10,984     11,713  

Deferred revenue—initiation deposits/fees

     11,860     9,847  

Insurance reserves

     9,144     9,277  

Advanced surface rights bonus payment

     3,750     3,750  

Other current liabilities

     3,258     3,808  
           
 

Total other current liabilitites

     53,706     50,135  

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

10. CURRENT AND LONG-TERM LIABILITIES (Continued)

        Other long-term liabilities consist of the following at year end:

 
   2010   2009  

Taxes payable

   $ 46,046   $ —  

Deferred membership revenues

     38,666     37,542  

Casualty insurance loss reserves—long term portion

     11,575     10,990  

Advanced surface rights bonus payment

     1,823     5,573  

Above market lease intangibles

     4,221     5,733  

Deferred rent

     15,991     12,293  

Other

     1,105     1,410  
           
 

Total other long-term liabilities

   $ 119,427   $ 73,541  
           

        We are self-insured for a significant portion of our employees' medical cost. Additionally, we reserve for our uncovered liability related to casualty claims. We account for self-insurance programs based on actuarial estimates of the amount of loss inherent in the period's claims, including losses for which claims have not been reported. We limit our risk by carrying stop loss policies. The current portion of these casualty and health reserves are $6.5 million and $2.6 million, respectively, for the year ended December 28, 2010 and are included in the current portion of insurance reserves above.

11. DEBT AND CAPITAL LEASES

Senior Secured Credit Facilities

        2006 Citigroup Debt Facility—In 2006, an affiliate of CCI ("Borrower") entered into a debt agreement with Citigroup which resulted in a Mortgage loan, a Senior Mezzanine loan, a Junior Mezzanine loan, and a revolving loan facility (collectively the "2006 Citigroup Debt Facility"), which was initially to mature in January 2010. In July 2008, the Borrower amended the 2006 Citigroup Debt Facility extending the maturity date to July 2012. The loans were collateralized by the majority of our owned golf and country clubs, the two full-service resorts that were sold in connection with the ClubCorp Formation, and the operations of the business, sports and alumni clubs. Payments on the notes were interest only during the term of the loans with principal due at maturity; interest rates were variable based on 30 day LIBOR rates.

        For all periods presented prior to November 30, 2010, balances under the Citigroup Debt Facility, as well as related interest expense including loan amortization fees have been allocated between ClubCorp's continuing and Non-Core discontinued liabilities based on relative asset balances. Management believes such allocations are reasonable.

        In July 2008, we paid $8.0 million in principal on the long term debt facility in conjunction with the refinancing of two properties described below. In October 2008, we voluntarily paid $12.4 million in principal on the long term debt facility. In May 2009, we paid $0.7 million in principal on the long term debt facility in conjunction with the sale of one property. In June 2009 and November 2009, we voluntarily paid $98.8 million and $20.6 million, respectively, in principal on the long term debt facility. In June 2010 and November 2010, we voluntarily paid $20.6 million and $50.4 million, respectively, in principal on the long term debt facility.

        On November 30, 2010, in connection with the ClubCorp Formation, we repaid $826.9 million in principal on the long term debt facility and $105.3 million on the revolving loan facility and Citigroup forgave the remaining $342.3 million of debt under the 2006 Citigroup Debt Facility thereby

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

11. DEBT AND CAPITAL LEASES (Continued)


terminating such facility. The resulting gain of $342.3 million was recorded in gain on extinguishment of debt in the consolidated statement of operations. We expensed the remaining $4.8 million of loan origination fees related to the 2006 Citigroup Debt Facility and the $3.1 million in fees paid related to the 2010 Citigroup Debt Facility against the gain on extinguishment of debt.

        The debt allocated to the Non-Core discontinued operations of approximately $266.1 million is included in liabilities of discontinued Non-Core Entities as of December 29, 2009, and was repaid as part of the 2010 net distribution to KSL affiliates attributable to the sale of Non-Core Entities and the ClubCorp Formation.

        2010 Citigroup Debt Facility—On November 30, 2010, we entered into a senior secured credit facility with Citigroup ("2010 Citigroup Debt Facility"). The 2010 Citigroup Debt Facility is comprised of (i) a $310.0 million term loan facility and (ii) a revolving credit facility with a maximum borrowing limit of $50.0 million, which includes letter of credit and swing line facilities. The term loan facility matures November 30, 2016 and the revolving credit facility expires on November 30, 2015. As of December 28, 2010, we had $17.3 million of standby letters of credit outstanding and $32.7 million remaining available for borrowing under the revolving credit facility.

        All obligations under the 2010 Citigroup Debt Facility are guaranteed by Parent and each existing and all subsequently acquired or organized direct and indirect restricted subsidiaries of ClubCorp, other than certain excluded subsidiaries (collectively, the "guarantors"). The 2010 Citigroup Debt Facility is secured, subject to permitted liens and other exceptions, by a first-priority perfected security interest in substantially all the assets of ClubCorp, and the guarantors, including, but not limited to (1) a perfected pledge of all the domestic capital stock owned by ClubCorp and the guarantors, and (2) perfected security interests in and mortgages on substantially all tangible and intangible personal property and material fee-owned property of ClubCorp and the guarantors, subject to certain exclusions.

        We are required to make principal payments equal to 0.25% of the original term loan facility on the last business day of each of March, June, September and December beginning in March 2011. Beginning with the fiscal year ended December 27, 2011, we are required to prepay the outstanding term loan, subject to certain exceptions, by an amount equal to 50% of our excess cash flows, as defined by the credit agreement, each fiscal year end after our annual consolidated financial statements are delivered. This percentage may decrease if certain leverage ratios are achieved. Additionally, we are required to prepay the term loan facility with proceeds from certain asset sales or borrowings as defined by the credit agreement.

        We may voluntarily repay outstanding loans under the 2010 Citigroup Debt Facility in whole or in part upon prior notice without premium or penalty, other than certain fees incurred in connection with repaying, refinancing, substituting or replacing the existing term loans with new indebtedness.

        The interest rate on the 2010 Citigroup Debt Facility is the higher of (i) 6.0% or (ii) an elected LIBOR plus a margin of 4.5%. We may elect a one, two, three or six-month LIBOR. The interest payment is due on the last day of each elected LIBOR period.

        We are also required to pay a commitment fee on all undrawn amounts under the revolving credit facility, payable in arrears on the last business day of each March, June, September and December.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

11. DEBT AND CAPITAL LEASES (Continued)

        The credit agreement governing the 2010 Citigroup Debt Facility limits ClubCorp's (and most or all of ClubCorp subsidiaries') ability to:

    •
    create, incur, assume or suffer to exist any liens on any of their assets;

    •
    make or hold any investments (including loans and advances);

    •
    incur or guarantee additional indebtedness;

    •
    enter into mergers or consolidations;

    •
    conduct sales and other dispositions of property or assets;

    •
    pay dividends or distributions on capital stock or redeem or repurchase capital stock;

    •
    change the nature of the business;

    •
    enter into transactions with affiliates; and

    •
    enter into burdensome agreements.

        In addition, the credit agreement governing the 2010 Citigroup Debt Facility contains covenants that require ClubCorp and its restricted subsidiaries to maintain specified financial ratios, which include the following ratios beginning with quarter end March 2011:

    •
    consolidated total debt to an adjusted EBITDA, as defined by the credit agreement; and

    •
    consolidated and adjusted EBITDA, as defined by the credit agreement, to consolidated interest expense.

        We incurred loan origination fees in conjunction with the issuance of the 2010 Citigroup Debt Facility of $6.8 million. These have been capitalized and are being amortized over the term of the loan. $0.9 million of these fees had not been paid at December 28, 2010 and are included in accrued expenses on the balance sheet.

        Interest Rate Cap Agreements—As required by the Citigroup debt agreements, at December 26, 2006, Borrower entered into interest rate cap agreements that limit Borrower's exposure to increases in interest rates over certain amounts. These interest rate caps matured in January 2010 and had effectively limited the LIBOR rate to 5.50%. In July 2007, Borrower purchased additional interest caps for $6.6 million. These agreements limited Borrower's LIBOR exposure to 5.50% and matured in July 2010. All value of matured interest rate caps was expensed at maturity.

        In June 2008, Borrower entered into additional interest rate cap agreements with a fair value of $12.1 million. These agreements limit Borrower's LIBOR exposure to 5.50% and mature in July 2012. In July 2009, Borrower sold a portion of its interest rate cap agreements in conjunction with a paydown of debt. Borrower received $0.7 million of proceeds related to this sale.

        We allocated the fair value of the interest rate cap agreements between continuing and discontinued Non-Core Entities based on proportional debt allocations for all periods presented prior to November 30, 2010.

        In December 2010, in connection with the ClubCorp Formation, we sold the remaining interest rate cap agreements for $0.2 million.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

11. DEBT AND CAPITAL LEASES (Continued)

        The portion of the interest rate cap agreements related to the 2006 Citigroup Debt Facility allocated to continuing operations is summarized below:

 
    
  

Balance at beginning of year, 2008

   $ 1,911  

Purchase

     10,104  

Losses included in earnings

     (10,454 )
       

Balance at end of year, 2008

   $ 1,561  
       

Sale

     (576 )

Gains included in earnings

     2,624  
       

Balance at end of year, 2009

   $ 3,609  
       

Sale

     (150 )

Losses included in earnings

     (3,459 )
       

Balance at end of year, 2010

   $ —  
       

        Such year-end amounts are included in other assets on the consolidated balance sheets.

        In December 2010, in connection with the issuance of the 2010 Citigroup Debt Facility, we entered into an interest rate cap agreement that limits our exposure to increases in interest rates over certain amounts. The interest rate cap matures in December 2012 and limits the LIBOR rate to 3.0% on a notional amount of $155 million. The aggregate fair value of the interest rate cap agreement was $0.1 million on December 28, 2010 and was included in other assets on the consolidated balance sheet.

 
    
  

Balance at beginning of year, 2010

   $ —  

Purchase

     208  

Loss included in earnings

     (70 )
       

Balance at end of year, 2010 (included in other assets)

   $ 138  
       

Senior Unsecured Notes

        On November 30, 2010, we issued $415.0 million in senior unsecured notes with registration rights, bearing interest at 10.0% and maturing December 1, 2018. The interest is payable semiannually in arrears on June 1 and December 1 each year, beginning June 1, 2011. The notes are fully and unconditionally guaranteed on a joint and several basis by most of ClubCorp's subsidiaries ("Guarantor Subsidiaries"), each of which is wholly owned by ClubCorp. The notes are not guaranteed by certain of ClubCorp's subsidiaries ("Non-Guarantor Subsidiaries"). The indenture governing the notes limits our (and most or all of our subsidiaries') ability to:

    •
    incur, assume or guarantee additional indebtedness;

    •
    pay dividends or distributions on capital stock or redeem or repurchase capital stock;

    •
    make investments;

    •
    enter into agreements that restrict the payment of dividends or other amounts by subsidiaries to us;

    •
    sell stock of our subsidiaries;

    •
    transfer or sell assets;

    •
    create liens;

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

11. DEBT AND CAPITAL LEASES (Continued)

    •
    enter into transactions with affiliates; and

    •
    enter into mergers or consolidations.

        Subject to certain exceptions, the indenture governing the notes permits us and our restricted subsidiaries to incur additional indebtedness, including secured indebtedness.

        We incurred loan origination fees in conjunction with the issuance of the senior unsecured notes of $9.1 million. These have been capitalized and are being amortized over the term of the notes. $1.2 million of these fees had not been paid at December 28, 2010 and are included in accrued expenses on the balance sheet.

Mortgage Loans

        General Electric Capital Corporation—In July 2008, we entered into a new mortgage loan with General Electric Capital Corporation ("GECC") for $32.0 million which matures in July 2011. We have the right to extend the term of the loan for successive years up to July 2013 upon satisfaction of certain conditions of the loan agreement. As of December 28, 2010, we expect to meet the required conditions and intend to so extend the loan with GECC to July 2012. We have classified the loan as long-term debt on the consolidated balance sheet except for the amount included in current portion of long term debt. The loan is collateralized by the assets of two golf and country clubs. The proceeds from the loan were used to pay existing debt of $11.2 million to GECC and $2.7 million to Ameritas Life in addition to the payment of $8.0 million on the Citigroup Debt mentioned above. Interest rates are variable based on 30 day LIBOR rates. Payments on the loan were interest only through August 2009 with principal payments commencing in September 2010 based upon a twenty-five year amortization schedule. However, as the cash on cash return (defined as the percentage of underwritten net operating income for the previous twelve months divided by the outstanding principal balance of the loan as of such date) for the period September 1, 2008 through August 31, 2009, and September 1, 2009 through August 31, 2010, was greater than 14% and 15%, respectively, amortization will not commence until September 1, 2011. We incurred loan origination fees in conjunction with this loan of $0.9 million which have been capitalized and are being amortized over the term of the loan.

        Atlantic Capital Bank—In October, 2010, we entered into a new mortgage loan with Atlantic Capital Bank for $4.0 million of debt maturing in 2015 with 25-year amortization. The loan is collateralized by the assets of one golf and country club. Interest rates are variable based on 30 day LIBOR rates. We incurred loan origination fees in conjunction with the issuance of this mortgage loan of $0.1 million. These have been capitalized and are being amortized over the term of the loan.

Other Borrowings

        On July 15, 2010, we settled certain litigation with a noncontrolling shareholder of a foreign subsidiary which, in exchange for certain real estate owned by such subsidiary, extinguished $1.8 million of debt and $1.5 million of accrued interest and acquired the remaining equity interest of the noncontrolling shareholder. This transaction resulted in a gain of $3.0 million.

        As of December 28, 2010, we have $4.2 million in other notes outstanding.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

11. DEBT AND CAPITAL LEASES (Continued)

        Long-term borrowings and lease commitments of the Company as of December 28, 2010 and December 29, 2009, are summarized below:

 
   2010   2009   Interest Rate   Maturity

Senior Unsecured Notes

   $ 415,000   $ —   10.00%   2018

Senior Secured Credit Facilities

                    
 

2010 Citigroup Debt Facility

                    
   

Term Loan

     310,000     —   Greater of (i) 6.0% or (ii) an elected LIBOR + 4.5% (6.0% at December 28, 2010)   2016
   

Revolving Notes ($50,000 capacity)

     —     —   Greater of (i) 6.0% or (ii) an elected LIBOR + 4.5% (6.0% at December 28, 2010)   2015
 

2006 Citigroup Debt Facility

                    
   

Mortgage Loan

     —     505,033   1.68% + 30 day LIBOR (1.92% at December 29, 2009)   2012
   

Mezzanine Loan—Senior Note

     —     116,202   1.29% + 30 day LIBOR (1.53% at December 29, 2009)   2012
   

Mezzanine Loan—Junior Note

     —     618,934   1.89% to 2.80% + 30 day LIBOR (2.13% - 3.04% at December 29, 2009)   2012
   

Mezzanine Loan—Revolving Note ($125,000 capacity)

     —     105,305   1.89% + 30 day LIBOR (2.13% at December 29, 2009)   2012

Mortgage Loans

                    
 

General Electric Capital Corporation

     32,000     32,000   3.25% + 30 day LIBOR (3.56% at December 28, 2010 and 3.50% at December 29, 2009)   2013
 

Atlantic Capital Bank

     3,973     —   Greater of (i) 3.0% + 30 day LIBOR or (ii) 4.5% (4.5% at December 28, 2010)   2015
 

Other notes

     4,209     3,533   5.75% - 8.00% for the year ended December 28, 2010; 4.00% + 30 day LIBOR (4.99% at December 29, 2009) - 8.50% for the year ended December 29, 2009   Various
                 

    765,182     1,381,007        

Capital leases

     18,092     20,334        
                 

    783,274     1,401,341        

Less current portion

     11,195     9,974        
                 

  $ 772,079   $ 1,391,367        
                 

        The amount of long-term debt maturing in each of the five years subsequent to 2010 and thereafter is as follows:

Year
  Debt   Capital Leases   Total  

2011

   $ 3,120   $ 8,075   $ 11,195  

2012

     4,297     5,782     10,079  

2013

     35,056     2,925     37,981  

2014

     2,746     1,020     3,766  

2015

     6,710     290     7,000  

Thereafter

     713,253     —     713,253  
               
 

Total

   $ 765,182   $ 18,092   $ 783,274  
               

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

11. DEBT AND CAPITAL LEASES (Continued)

Fair Value

        Management estimates the fair value of ClubCorp's long-term debt excluding capital lease obligations at $765.2 million and $1.1 billion as of December 28, 2010 and December 29, 2009, respectively. We estimated the fair value of long term debt using a market based analysis using current market inputs for similar types of arrangements. Fluctuations in these assumptions will result in different estimates of fair value.

12. LEASES

        We lease operating facilities under agreements with terms ranging from 1 to 60 years. These agreements normally provide for minimum rentals plus executory costs. In some cases, we must pay contingent rent generally based on a percentage of gross receipts or positive cash flows as defined in the lease agreements. As a result, future lease payments that are considered contingent on future results are not included in the table below.

        Future minimum lease payments for each of the next five years and thereafter required at December 28, 2010 under operating leases for land, buildings and recreational facilities with initial non-cancelable lease terms in excess of one year are as follows:

Year
  Capital Leases   Operating Leases  

2011

   $ 9,249   $ 20,957  

2012

     6,363     19,500  

2013

     3,135     17,868  

2014

     1,076     16,802  

2015

     299     15,390  

Thereafter

     —     102,942  
           

Minimum lease payments

   $ 20,122   $ 193,459  
             

Less: imputed interest component

     2,030        
             

Present value of net minimum lease payments of which $8.1 million is included in current liabilities

   $ 18,092        
             

        Total facility rental expense was $29.9 million in 2010, $31.9 million in 2009 and $34.1 million in 2008; contingent rent was $8.6 million in 2010, $10.1 million in 2009 and $12.5 million in 2008. Total minimum rentals to be received in the future under non-cancelable subleases as of December 28, 2010 total $1.7 million.

13. INCOME TAXES

        The Company joins in the filing of a consolidated federal income tax return with Holdings, the Company's ultimate parent. The Company records income taxes based on the separate return method determined as if the Company was not included in a consolidated return. Income taxes recorded by the Company are further adjusted to the extent losses or other deductions cannot be utilized in the consolidated federal income tax return. The Company files state tax returns on a separate company

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

13. INCOME TAXES (Continued)


basis or unitary basis as required by law. Additionally, certain subsidiaries of the Company owned through lower tier joint ventures also file separate tax returns for federal and state purposes.

        We account for income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are calculated using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the period that includes the enactment date. Valuation allowances are provided against deferred income tax assets for amounts which are not considered "more likely than not" to be realized.

        Income (loss) from continuing operations before income taxes and noncontrolling interest consists of the following:

 
   2010   2009   2008  

Domestic

   $ 315,577   $ (20,745 ) $ (55,319 )

Foreign

     3,134     565     (4,347 )
               

  $ 318,711   $ (20,180 ) $ (59,666 )
               

        The income tax (expense) benefit from continuing operations consists of the following:

 
   2010   2009   2008  

Current

                    
 

Federal

   $ (39,895 ) $ (1,127 ) $ (431 )
 

State

     (8,803 )   (4,133 )   (4,199 )
 

Foreign

     3,229     (4,283 )   (655 )
               
   

Total Current

     (45,469 )   (9,543 )   (5,285 )
               

Deferred

                    
 

Federal

     (11,787 )   9,169     20,480  
 

State

     147     1,332     2,608  
 

Foreign

     —     —     —  
               
   

Total Deferred

     (11,640 )   10,501     23,088  
               

Total income tax (expense) benefit

   $ (57,109 ) $ 958   $ 17,803  
               

        Cash paid for federal, state and foreign income taxes was $6.1 million, $6.5 million and $4.7 million for the years ended December 28, 1010, December 29, 2009 and December 30, 2008, respectively.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

13. INCOME TAXES (Continued)

        The differences between income taxes computed using the U.S. statutory Federal income tax rate of 35% and the actual income tax provision for continuing operations as reflected in the accompanying consolidated statement of operations are as follows (dollars in thousands):

 
   2010   2009   2008  
 

Expected Federal income tax (benefit) expense

   $ (111,550 ) $ 7,063   $ 20,883  
 

State taxes, net of Federal benefit

     (4,827 )   (2,269 )   (1,595 )
 

Change in valuation allowance—State

     (799 )   449     561  
 

Change in valuation allowance—Foreign

     (68 )   472     333  
 

Foreign rate differential

     157     40     (348 )
 

Asset Tax/IETU—Foreign

     3,229     (4,283 )   (655 )
 

Forgiveness of Debt

     55,141     —     —  
 

Other, net

     1,608     (514 )   (1,376 )
               

Actual income tax (expense) benefit

   $ (57,109 ) $ 958   $ 17,803  
               

        We had the following federal net operating loss carryforwards at December 28, 2010, which are available to offset future taxable income:

Type of Carryforward
  Gross
Amount 		  Expiration
Dates (in
years) 		 

Federal tax operating loss

     —     —  

State tax operating loss

   $ 151,112     2011 - 2030  

AMT net operating loss

     —     —  

Mexico net operating loss

   $ 18,299     2015 - 2019  

        The net operating loss carryforwards reflect increases or decreases recorded through retained deficit contributions or distributions, respectively, to properly account for the impact of other affiliated entities included in the consolidated federal income tax return that are not included in the accompanying consolidated financial statements. Due to debt forgiveness income under code Section 108(a), the remaining NOL of $40.2 million is reduced to zero as part of the tax attribute reduction rules.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

13. INCOME TAXES (Continued)

        The components of the deferred tax assets and deferred tax liabilities at December 28, 2010 and December 29, 2009 are as follows:

 
   2010   2009  
 

Deferred tax assets:

              
   

Federal tax net operating loss carryforwards

   $ —   $ 52,981  
   

State and foreign tax net operating loss carryforwards

     11,262     12,296  
   

Membership deferred revenue

     32,641     27,257  
   

Reserves and accruals

     14,102     13,882  
   

AMT credit carryforwards

     —     6,801  
   

Tax credits

     5,008     4,992  
   

Other

     35,132     22,657  
           
     

Total gross deferred tax assets

   $ 98,145   $ 140,866  
 

Valuation allowance

     (14,624 )   (15,355 )
 

Deferred tax liabilities:

              
   

Discounts on membership deposits and acquired notes

     161,304     166,395  
   

Property and equipment

     126,342     119,703  
   

Deferred revenue

     409     —  
   

Intangibles

     26,128     39,589  
   

Other

     7,532     4,077  
           
     

Total gross deferred tax liabilities

     321,715     329,764  
           

Net deferred tax liability

   $ (238,194 ) $ (204,253 )
           

        The allocation of deferred taxes between current and long-term as of December 28, 2010 and December 29, 2009 is as follows:

 
   2010   2009  
 

Current portion-deferred tax asset, net

   $ 6,378   $ 7,998  
 

Long-term deferred tax liability, net

     (244,572 )   (212,251 )
           

Net deferred tax liability

   $ (238,194 ) $ (204,253 )
           

        FASB ASC Topic 740-10 prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. Benefits from tax positions should be recognized in the financial statements only when it is more likely than not that the tax position will be sustained upon examination by the appropriate taxing authority that would have full knowledge of all relevant information.

        A tax position that meets the more-likely-than-not recognition threshold is measured at the largest amount of benefit that is greater than fifty percent likely of being realized upon ultimate settlement. Tax positions that previously failed to meet the more-likely-than-not recognition threshold should be recognized in the first subsequent financial reporting period in which that threshold is met. Previously recognized tax positions that no longer meet the more-likely-than-not recognition threshold should be derecognized in the first subsequent financial reporting period in which that threshold is no longer met.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

13. INCOME TAXES (Continued)


FASB ASC Topic 740-10 also provides guidance on the accounting for and disclosure of unrecognized tax benefits, interest and penalties.

        There was no cumulative effect adjustment to retained deficit required as a result of adopting FASB ASC Topic 740-10. We recognize accrued interest and penalties related to uncertain tax positions as a component of income tax expense. Income tax expense for 2010 includes interest expense and penalties net of tax of $0.5 million. Prior to December 28, 2010, no interest or penalties were recorded related to unrecognized tax benefits because of the availability of net operating loss carryforwards.

        A reconciliation of the change in our unrealized tax benefit for all periods presented is as follows:

 
   2010   2009   2008  

Balance at beginning of year

   $ 8,490   $ 10,727   $ 15,300  

Increases in tax positions for current year

     44,395     —     —  

Increases in tax positions for prior years

     1,432     —     16  

Decreases in tax positions for prior years

     (1,102 )   (2,237 )   (4,589 )
               

Balance at end of year

   $ 53,215   $ 8,490   $ 10,727  
               

        Included in the unrecognized tax benefits as of December 28, 2010 are $40.4 million of tax benefits that, if recognized, would reduce Holdings' effective tax rate. As of December 28, 2010, $46.0 million of unrecognized tax benefits are included in other liabilities (Note 10) in the consolidated financial statements. Currently, unrecognized tax benefits are not expected to change significantly over the next twelve months.

        Holdings files income tax returns in the U.S. federal jurisdiction, numerous state jurisdictions and in Mexico. Under a previous settlement agreement related to an audit by the Internal Revenue Service we are no longer subject to U.S. federal income tax examinations by tax authorities for years before 1995.

        Mexico enacted the 2008 Fiscal Reform Bill on October 1, 2007. Effective January 1, 2008, the bill repealed the existing asset-based tax and established a dual income tax system consisting of a new minimum flat tax (the "IETU") and the existing regular income tax system. The IETU system taxes companies on cash basis net income, consisting only of certain specified items of revenue and expense, at a rate of 16.5%, 17% and 17.5% for 2008, 2009 and 2010 forward, respectively. In general, companies must pay the higher of the income tax or the IETU, although unlike the previous asset tax, the IETU is not creditable against future income tax liabilities.

        On December 7, 2009, Mexico enacted the 2010 Mexican Tax Reform Bill ("Tax Reform Bill") to be effective January 1, 2010. Under this new legislation, the corporate income tax rate will be temporarily increased from 28% to 30% for 2010 through 2012, then reduced to 29% in 2013, and finally reduced back to 28% in 2014 and future years. Further, under current law income tax loss carryforwards reported in the tax consolidation that were not utilized on an individual company basis within 10 years were subject to recapture. The Tax Reform Bill as enacted accelerates this recapture period from 10 years to 5 years and effectively requires payment of taxes even if no benefit was obtained through the tax consolidation regime. Finally, significant modifications were also made to the rules for income taxes previously deferred on intercompany dividends, as well as to income taxes related to differences between consolidated and individual Mexican tax earnings and profits. Our

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

13. INCOME TAXES (Continued)


estimated income tax impact of this new legislation at December 29, 2009 was approximately $3.6 million.

        In March 2010, the Mexican tax authorities issued Miscellaneous Tax Resolutions ("MTRs") to clarify various provisions included in the Tax Reform Bill related to recapture amounts for 2004 and prior years, including certain aspects of the recapture rules related to income tax loss carryforwards, intercompany dividends and differences between consolidated and individual Mexican tax earnings and profits. In December 2010, the Mexican tax authorities issued an additional MTR addressing tax year 2005 and subsequent periods. The MTRs issued in March 2010 and December 2010 eliminated the recapture tax on losses for which no tax benefit was received in consolidation and also clarified certain other aspects of the Tax Reform Bill originally enacted in December 2009. In addition to the above, the Company completed a reorganization of certain of its Mexican operations in the third quarter of 2010. The issuance of the MTRs described above and the reorganization of the Mexican operations resulted in a reversal of the originally accrued tax liability of approximately $3.9 million during the year ended December 28, 2010.

14. CLUB ACQUISITIONS, CLUB DISPOSITIONS, AND DISCONTINUED OPERATIONS

Club Acquisitions

        Assets acquired and liabilities assumed in business combinations were recorded on our consolidated balance sheets at fair value at the date of acquisition. The results of operations of such businesses have been included in the consolidated statements of operations since their date of acquisition.

        Country Club of the South—On June 23, 2010, ClubCorp acquired Country Club of the South, a private golf club located in Georgia. ClubCorp purchased or assumed the following major categories of assets and liabilities in exchange for consideration of $7.4 million:

Property and equipment

   $ 8,800  

Inventory

     132  

Liabilities assumed

     (270 )
       
 

Total

   $ 8,662  
       

        A bargain purchase gain of $1.2 million was recognized on this transaction, resulting from ClubCorp acquiring the entity out of bankruptcy.

Club Dispositions

        Subsidiaries may be divested when management determines they will be unable to provide a positive contribution to cash flows from operations in future periods and/or when they are determined to be non-strategic holdings for the Company. Gains from divestitures are recognized in the period in which operations cease and losses are recognized when we determine that the carrying value is not recoverable and exceeds fair value.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

14. CLUB ACQUISITIONS, CLUB DISPOSITIONS, AND DISCONTINUED OPERATIONS (Continued)

        Plaza Club-Hawaii, LTD.—On October, 6, 2009, we sold certain assets and liabilities of Plaza Club-Hawaii, LTD., a business, sports and alumni club, to an unrelated third party, for $0.2 million, resulting in a pre-tax loss of $0.1 million.

        Atascocita Country Club—On May 15, 2009, we sold certain assets of Atascocita Country Club, a golf and country club, to an unrelated third party for $1.1 million. Members of Atascocita were transferred to another Company property and therefore operations of this club are not classified as discontinued operations.

        San Francisco Tennis Club, Inc.—On February 1, 2009, we sold the assets of San Francisco Tennis Club, Inc., a business, sports and alumni club, to WAC SFTC Holdings, LLC, an affiliate of KSL., resulting in a pre-tax loss of $0.1 million. We believe that the transaction was consummated on terms equivalent to those that would prevail in an arm's-length transaction. The operations of the property have been reclassified to discontinued operations on the consolidated statement of operations for all periods presented in our financial statements. In 2008, we recorded an impairment related to this asset of $35.4 million, which is included in the loss from discontinued operations.

        We discontinued one business, sports and alumni club for no pre-tax gain or loss in the year ended December 28, 2010. We discontinued one additional business, sports and alumni club and two management contracts for no pre-tax gain or loss in the year ended December 29, 2009. We discontinued one additional business, sports and alumni club in the year ended December 30, 2008 for a gain of $0.1 million.

Discontinued Club Operations

        Operations of the clubs that were disposed during the years ended December 28, 2010, December 29, 2009 and December 30, 2008 were reclassified to discontinued operations on the consolidated statement of operations as follows for all periods presented:

 
   2010   2009   2008  

Revenues

   $ 145   $ 3,416   $ 13,017  

Loss on disposals and impairment of assets, before income taxes

   $ (26 ) $ (539 ) $ (35,412 )

Income (loss) from discontinued club operations, before taxes

   $ 57   $ (1,079 ) $ (35,290 )

Discontinued Non-Core Entities

        In connection with the ClubCorp Formation on November 30, 2010, CCI distributed its Non-Core Entities to affiliates of KSL. No gain or loss was recognized as this was a transaction with entities under common control. The operations of the Non-Core Entities have been reclassified to discontinued

F-32

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

14. CLUB ACQUISITIONS, CLUB DISPOSITIONS, AND DISCONTINUED OPERATIONS (Continued)


Non-Core operations on the consolidated statement of operations as follows for all periods presented in our financial statements:

 
   2010   2009   2008  

Revenues

   $ 93,124   $ 100,468   $ 124,381  

Loss from discontinued Non-Core Entities, before taxes

   $ (2,031 ) $ (18,331 ) $ (5,091 )

Assets of discontinued Non-Core Entities

   $ —   $ 289,376        

Liabilities of discontinued Non-Core Entities

   $ —   $ 353,260        

        $9.6 million of goodwill was allocated to the Non-Core Entities and is included in Assets of Discontinued Non-Core Entities on the December 29, 2009 balance sheet. $31.1 million of deferred tax liabilities were included in Liabilities of Discontinued Non-Core Entities on the December 29, 2009 balance sheet. In addition $10.7 million and $12.1 million in depreciation expense related to Non-Core Entities has been included in income (loss) from discontinued Non-Core Entities in the statement of operations for the years ended December 28, 2010 and December 29, 2009, respectively.

15. SEGMENT AND GEOGRAPHIC INFORMATION

        We currently have two reportable segments: (1) golf and country clubs and (2) business, sports and alumni clubs. These segments are managed separately and discrete financial information is reviewed regularly by the chief operating decision maker to evaluate performance and allocate resources. Our chief operating decision maker is the Chief Executive Officer.

        Golf and country clubs operations consist of private country clubs, golf clubs and public golf facilities. Private country clubs provide at least one 18-hole golf course and various other recreational amenities that are open only to members and their guests. Golf clubs provide both private and public golf play and usually offer fewer other recreational amenities. Public golf facilities are open to the public and generally provide the same services as golf clubs.

        Business, sports and alumni club operations consist of business clubs, business/sports clubs, sports clubs and alumni clubs. Business clubs provide a setting for dining, business or social entertainment. Sports clubs provide a variety of recreational facilities and business/sports clubs provide a combination of the amenities available at business clubs and sports clubs. All amenities offered above are available only to members and their guests.

        Included within other are revenues from mineral rights and revenues and expenses on corporate overhead and shared services which are not material enough to warrant a separate segment.

        We evaluate segment performance and allocate resources based on Adjusted EBITDA. We define Adjusted EBITDA as net income before discontinued operations, interest and investment income, interest expense and the change in fair value of interest rate cap agreements, income taxes, loss on disposal and impairment of assets, depreciation and amortization, translation gain and loss, proceeds from business interruption insurance, severance payments, the negative EBITDA impact related to estimated settlement for unclaimed property accrued during fiscal year 2009, fees and expenses paid to KSL, acquisition costs and amortization on investments in joint ventures. Adjusted EBITDA for all periods presented has been calculated using this definition. Adjusted EBITDA should not be construed

F-33

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

15. SEGMENT AND GEOGRAPHIC INFORMATION (Continued)


as an alternative to, or a better indicator of, operating income or loss, is not based on accounting principles generally accepted in the United States of America, and is not necessarily a measure of our cash flows or ability to fund our cash needs. Our measurements of Adjusted EBITDA may not be comparable to similar titled measures reported by other companies.

        The table below shows summarized financial information by segment for continuing operations for the years ended December 28, 2010, December 29, 2009 and December 30, 2008:

 
   2010   2009   2008  

Golf and Country Clubs

                    
 

Revenues

   $ 523,750   $ 526,218   $ 565,395  
 

Adjusted EBITDA

     142,967     146,902     143,684  
 

Total Assets

     1,242,173     1,277,351        
 

Capital Expenditures

     28,372     28,531     81,468  

Business, Sports and Alumni Clubs

                    
 

Revenues

   $ 175,833   $ 184,320   $ 215,722  
 

Adjusted EBITDA

     30,197     35,560     44,969  
 

Total Assets

     103,961     112,974        
 

Capital Expenditures

     16,709     4,285     23,408  

Other

                    
 

Revenues

   $ 4,833   $ 7,369   $ 11,944  
 

Adjusted EBITDA

     (28,447 )   (25,699 )   (25,842 )
 

Total Assets

     434,795     483,814        
 

Capital Expenditures

     6,329     2,420     3,052  

Elimination of intersegment revenues

  
$
(7,779
)
$
(8,274
)
$
(9,602
)

Consolidated

                    
 

Revenues

   $ 696,637   $ 709,633   $ 783,459  
 

Adjusted EBITDA

     144,717     156,763     162,811  
 

Total Assets

     1,780,929     1,874,139        
 

Capital Expenditures

     51,410     35,236     107,928  

        The following table presents revenue and long-lived assets by geographical region, excluding financial instruments. Foreign operations are primarily located in Mexico.

 
   2010   2009   2008  

Revenues

                    
 

United States

   $ 688,703   $ 701,633   $ 771,617  
 

All Foreign

     7,934     8,000     11,842  
               
   

Total

   $ 696,637   $ 709,633   $ 783,459  
               

F-34

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

15. SEGMENT AND GEOGRAPHIC INFORMATION (Continued)

 

 
   2010   2009    
  

Long-Lived Assets

                    
 

United States

   $ 1,580,259   $ 1,615,774        
 

All Foreign

     28,084     26,176        
                 
   

Total

   $ 1,608,343   $ 1,641,950        
                 

        The table below provides a reconciliation of our Adjusted EBITDA to loss before income taxes and discontinued operations for the years ended December 28, 2010, December 29, 2009 and December 30, 2008.

 
   2010   2009   2008  

Total Segment Adjusted EBITDA

   $ 144,717   $ 156,763   $ 162,811  
 

Interest and investment income

     714     2,684     4,290  
 

Interest expense and change in fair value of interest rate cap agreements

     (60,694 )   (55,759 )   (105,037 )
 

Loss on disposals and impairment of assets

     (3,892 )   (18,281 )   (6,522 )
 

Gain on extinguishment of debt

     334,412     —     —  
 

Depreciation and amortization

     (92,673 )   (98,619 )   (101,724 )
 

Translation gain (loss)

     (146 )   118     (5,971 )
 

Business interruption insurance

     —     816     943  
 

Severance payments

     (529 )   (1,698 )   (3,273 )
 

Unclaimed property accrual

     —     (3,024 )   —  
 

KSL fees and expenses

     (1,150 )   (1,135 )   (1,339 )
 

Acquisition costs

     —     —     (1,774 )
 

Amortization of step-up in certain equity method investments

     (2,048 )   (2,045 )   (2,070 )
               

Net income (loss) before income taxes and discontinued operations

   $ 318,711   $ (20,180 ) $ (59,666 )
               

16. COMMITMENTS AND CONTINGENCIES

        We routinely enter into contractual obligations to procure assets used in the day to day operations of our business. As of December 28, 2010, we had capital commitments of $6.5 million at certain of our country clubs.

        We currently have multiple sales and use tax audits in progress. Management believes the potential for a liability related to the outcome of these audits may exist. However, we believe that the outcome of these audits would not materially affect our consolidated financial statements.

        We are currently undergoing an audit related to unclaimed property. Management believes the potential for a liability related to the outcome of these audits may exist and has recorded a $3.0 million loss as an estimate of such liability in our 2009 consolidated statement of operations.

        We are subject to certain pending or threatened litigation and other claims that arise in the ordinary course of business. While the outcome of such legal proceedings and other claims cannot be predicted with certainty, after review and consultation with legal counsel, we believe that any potential liability from these matters would not materially affect our consolidated financial statements.

F-35

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

16. COMMITMENTS AND CONTINGENCIES (Continued)

        We guarantee principal amounts on loans made by a third party to purchasers of certain real estate interests in case of default. These loans have a remaining term averaging two to four years. The total principal amount outstanding on these loans as of December 28, 2010 is $0.9 million. ClubCorp is indemnified by affiliates of KSL from losses on these guarantees in the event of default and the fair value of the guarantees is immaterial.

        We are contingently liable for certain pension funding liabilities associated with one of the resorts we sold in connection with the ClubCorp Formation. As of December 28, 2010, the unfunded obligation for such plan was approximately $7.1 million. The Company believes that the probability that it would have to fund such liability is remote.

17. FINANCIAL STATEMENTS OF GUARANTORS

        As described in Note 11, in November 2010, we issued $415.0 million of Senior Unsecured Notes. The notes are fully and unconditionally guaranteed on a joint and several basis by Guarantor Subsidiaries, each of which is one hundred percent owned by ClubCorp. The notes are not guaranteed by Non-Guarantor Subsidiaries.

        Set forth below are consolidating financial statements presenting the results of operations, financial position, and cash flows of ClubCorp Club Operations, Inc., the Guarantor Subsidiaries on a consolidated basis, and the Non-Guarantor Subsidiaries on a consolidated basis, along with the eliminations necessary to arrive at the information for ClubCorp on a consolidated basis.

        Eliminations represent adjustments to eliminate investments in subsidiaries and intercompany balances and transactions between or among ClubCorp Club Operations, Inc., the Guarantor Subsidiaries, and the Non-Guarantor Subsidiaries. For this presentation, investments in subsidiaries are accounted for using the equity method of accounting. As described in Note 1, ClubCorp was formed in 2010 and is therefore excluded from consolidating financial statements of 2009 and 2008.

F-36

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)

Consolidating Statements of Operations
For the Year Ended December 28, 2010

 
   ClubCorp   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidation
Eliminations 		  Consolidated  

REVENUES:

                                

Club operations

   $ —   $ 464,892   $ 38,463   $ (1,622 ) $ 501,733  

Food and beverage

     —     181,073     10,949     —     192,022  

Other revenues

     —     4,705     32     (1,855 )   2,882  
                       
 

Total revenues

     —     650,670     49,444     (3,477 )   696,637  

DIRECT AND SELLING, GENERAL, AND ADMINISTRATIVE EXPENSES:

                                

Club operating costs exclusive of depreciation

     —     427,668     34,050     (3,477 )   458,241  

Cost of food and beverage sales exclusive of depreciation

     —     57,134     3,462     —     60,596  

Depreciation and amortization

     —     87,282     5,391     —     92,673  

Provision for doubtful accounts

     —     3,272     (24 )   —     3,248  

Gain on disposals and acquisitions of assets

     —     (1,031 )   (4,320 )   —     (5,351 )

Impairment of assets

     —     9,243     —     —     9,243  

Selling, general and administrative

     —     38,946     —     —     38,946  
                       

OPERATING INCOME

     —     28,156     10,885     —     39,041  

Interest and investment income

    
4,278		    
2,177		    
28		    
(5,769
)		  
714		  

Equity in earnings from unconsolidated ventures

     —     1,309     —     —     1,309  

Interest expense

     (4,969 )   (49,195 )   (8,770 )   5,769     (57,165 )

Change in fair value of interest rate cap agreements

     (70 )   (3,459 )   —     —     (3,529 )

Gain on extinguishment of debt

     —     334,412     —     —     334,412  

Other income

     —     3,929     —     —     3,929  
                       

INCOME (LOSS) BEFORE INCOME TAXES

     (761 )   317,329     2,143     —     318,711  

INCOME TAX BENEFIT (EXPENSE)

     267     (54,736 )   (2,640 )   —     (57,109 )
                       

INCOME (LOSS) FROM CONTINUING OPERATIONS

     (494 )   262,593     (497 )   —     261,602  

Income (loss) from discontinued Non-Core Entities, net of tax

     —     —     (8,779 )   —     (8,779 )

Income (loss) from discontinued operations, net of income tax expense of $5 for Guarantor Subsidiaries and income tax benefit of $2 for NonGuarantor Subsidiaries

     —     101     (47 )   —     54  

Equity in net loss of subsidiaries

     254,991     —     —     (254,991 )   —  
                       

NET INCOME (LOSS)

     254,497     262,694     (9,323 )   (254,991 )   252,877  

NET LOSS (INCOME) ATTRIBUTABLE TO NONCONTROLLING INTERESTS

     —     172     1,448     —     1,620  
                       

NET INCOME (LOSS) ATTRIBUTABLE TO CLUBCORP

   $ 254,497   $ 262,866   $ (7,875 ) $ (254,991 ) $ 254,497  
                       

F-37

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)


Consolidating Statements of Operations
For the Year Ended December 29, 2009

 
   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidating
Eliminations 		  Consolidated  

REVENUES:

                          

Club operations

   $ 479,819   $ 37,121   $ (1,552 ) $ 515,388  

Food and beverage

     182,302     9,476     —     191,778  

Other revenues

     4,334     21     (1,888 )   2,467  
                   
 

Total revenues

     666,455     46,618     (3,440 )   709,633  

DIRECT AND SELLING, GENERAL, AND ADMINISTRATIVE EXPENSES:

                          

Club operating costs exclusive of depreciation

     434,166     30,534     (3,440 )   461,260  

Cost of food and beverage sales exclusive of depreciation

     58,174     3,035     —     61,209  

Depreciation and amortization

     93,435     5,184     —     98,619  

Provision for doubtful accounts

     4,417     398     —     4,815  

Loss on disposals and acquisitions of assets

     4,348     2,125     —     6,473  

Impairment of assets

     11,808     —     —     11,808  

Selling, general and administrative

     39,266     —     —     39,266  
                   

OPERATING INCOME

     20,841     5,342     —     26,183  

Interest and investment income

    
5,217		    
130		    
(2,663
)		  
2,684		  

Equity in earnings from unconsolidated ventures

     706     —     —     706  

Interest expense

     (50,701 )   (10,345 )   2,663     (58,383 )

Change in fair value of interest rate cap agreements

     2,624     —     —     2,624  

Other income

     6,006     —     —     6,006  
                   

LOSS BEFORE INCOME TAXES

     (15,307 )   (4,873 )   —     (20,180 )

INCOME TAX BENEFIT (EXPENSE)

     3,132     (2,174 )   —     958  
                   

LOSS FROM CONTINUING OPERATIONS

     (12,175 )   (7,047 )   —     (19,222 )

Income (loss) from discontinued Non-Core Entities, net of tax

     —     (11,487 )   —     (11,487 )

Loss from discontinued operations, net of income tax benefit of $2 for Guarantor Subsidiaries and $282 for NonGuarantor Subsidiaries

     (6 )   (789 )   —     (795 )

Equity in net loss of consolidated non-guarantor subsidiaries

     (7,889 )   —     7,889     —  
                   

NET LOSS

     (20,070 )   (19,323 )   7,889     (31,504 )

NET LOSS (INCOME) ATTRIBUTABLE TO NONCONTROLLING INTERESTS

     17     2,749     —     2,766  
                   

NET LOSS ATTRIBUTABLE TO CLUBCORP

   $ (20,053 ) $ (16,574 ) $ 7,889   $ (28,738 )
                   

F-38

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)


Consolidating Statements of Operations
For the Year Ended December 30, 2008

 
   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidating
Eliminations 		  Consolidated  

REVENUES:

                          

Club operations

   $ 518,855   $ 43,415   $ (1,408 ) $ 560,862  

Food and beverage

     208,058     10,902     —     218,960  

Other revenues

     5,741     193     (2,297 )   3,637  
                   
 

Total revenues

     732,654     54,510     (3,705 )   783,459  

DIRECT AND SELLING, GENERAL, AND ADMINISTRATIVE EXPENSES:

                          

Club operating costs exclusive of depreciation

     491,086     42,771     (3,705 )   530,152  

Cost of food and beverage sales exclusive of depreciation

     59,898     3,297     —     63,195  

Depreciation and amortization

     93,865     7,859     —     101,724  

Provision for doubtful accounts

     4,012     538     —     4,550  

Loss on disposals and acquisitions of assets

     3,375     505     —     3,880  

Impairment of assets

     2,642     —     —     2,642  

Selling, general and administrative

     45,136     —     —     45,136  
                   

OPERATING INCOME (LOSS)

     32,640     (460 )   —     32,180  

Interest and investment income

    
6,756		    
95		    
(2,561
)		  
4,290		  

Equity in earnings from unconsolidated ventures

     1,514     —     —     1,514  

Interest expense

     (88,396 )   (8,748 )   2,561     (94,583 )

Change in fair value of interest rate cap agreements

     (10,454 )   —     —     (10,454 )

Other income

     7,387     —     —     7,387  
                   

LOSS BEFORE INCOME TAXES

     (50,553 )   (9,113 )   —     (59,666 )

INCOME TAX BENEFIT

     15,964     1,839     —     17,803  
                   

LOSS FROM CONTINUING OPERATIONS

     (34,589 )   (7,274 )   —     (41,863 )

Income from discontinued Non-Core Entities, net of tax

     —     (4,134 )   —     (4,134 )

Loss from discontinued operations, net of income tax benefit of $295 for Guarantor Subsidiaries and $11,411 for NonGuarantor Subsidiaries

     (593 )   (22,991 )   —     (23,584 )

Equity in net loss of consolidated non-guarantor subsidiaries

     (30,562 )   —     30,562     —  
                   

NET LOSS

     (65,744 )   (34,399 )   30,562     (69,581 )

NET LOSS ATTRIBUTABLE TO NONCONTROLLING INTERESTS

     (51 )   (297 )   —     (348 )
                   

NET LOSS ATTRIBUTABLE TO CLUBCORP

   $ (65,795 ) $ (34,696 ) $ 30,562   $ (69,929 )
                   

F-39

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)

Consolidating Balance Sheet
As of December 28, 2010

 
   ClubCorp   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidating
Eliminations 		  Consolidated  

CURRENT ASSETS:

                                
 

Cash and cash equivalents

   $ —   $ 51,994   $ 4,537   $ —   $ 56,531  
 

Restricted cash

     —     525     —     —     525  
 

Receivables, net of allowances

     —     50,686     3,098     —     53,784  
 

Inventories

     —     13,976     1,654     —     15,630  
 

Prepaids and other assets

     —     10,255     4,787     —     15,042  
 

Deferred tax assets

     —     6,429     (51 )   —     6,378  
                       
   

Total current assets

     —     133,865     14,025     —     147,890  

Investments

     —     17,687     —     —     17,687  

Property and equipment, net

     —     1,111,404     129,173     —     1,240,577  

Notes receivable, net of allowances

     —     1,917     630     —     2,547  

Goodwill

     —     272,000     —     —     272,000  

Intangibles, net

     —     61,796     1,467     —     63,263  

Investment in Subsidiaries

     270,056     —     —     (270,056 )   —  

Intercompany receivables

     666,328     —     61,261     (727,589 )   —  

Other assets

     15,891     20,115     959     —     36,965  
                       

TOTAL ASSETS

   $ 952,275   $ 1,618,784   $ 207,515   $ (997,645 ) $ 1,780,929  
                       

LIABILITIES AND STOCKHOLDERS' DEFICIT

                                

CURRENT LIABILITIES:

                                
 

Current maturities of long-term debt

     —     9,533     1,662     —     11,195  
 

Membership deposits—current portion

     —     31,222     20,482     —     51,704  
 

Accounts payable

     2,141     20,595     1,101     —     23,837  
 

Accrued expenses

     4,754     21,902     425     —     27,081  
 

Accrued taxes

     —     28,592     6,083     —     34,675  
 

Other liabilities

     —     50,280     3,426     —     53,706  
                       
   

Total current liabilities

     6,895     162,124     33,179     —     202,198  

Intercompany payables

     —     653,993     73,596     (727,589 )   —  

Long-term debt

     725,000     10,562     36,517     —     772,079  

Membership deposits

     —     160,028     51,596     —     211,624  

Deferred tax liability

     —     234,638     9,934     —     244,572  

Other liabilities

     —     114,776     4,651     —     119,427  
                       
   

Total liabilities

     731,895     1,336,121     209,473     (727,589 )   1,549,900  

Commitments and contingencies (see Note 16)

                                

EQUITY (DEFICIT)

                                

Common stock, $1.00 par value, 1,000 shares authorized, issued and outstanding at December 28, 2010

     1     —     —     —     1  
 

Additional paid-in capital

     211,118     231,154     29,126     (260,280 )   211,118  
 

Accumulated other comprehensive loss

     (2,520 )   (2,432 )   (88 )   2,520     (2,520 )
 

Retained earnings (deficit)

     11,781     47,660     (35,364 )   (12,296 )   11,781  
                       
   

Total stockholders' equity (deficit):

     220,380     276,382     (6,326 )   (270,056 )   220,380  
                       

Noncontrolling interests in consolidated subsidiaries

     —     6,281     4,368     —     10,649  
                       
   

Total equity (deficit)

     220,380     282,663     (1,958 )   (270,056 )   231,029  
                       

TOTAL LIABILITIES AND EQUITY (DEFICIT)

   $ 952,275   $ 1,618,784   $ 207,515   $ (997,645 ) $ 1,780,929  
                       

F-40

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)

Consolidating Balance Sheet
As of December 29, 2009

 
   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidating
Eliminations 		  Consolidated  

CURRENT ASSETS:

                          
 

Cash and cash equivalents

   $ 66,845   $ 6,723   $ —   $ 73,568  
 

Restricted cash

     9,684     4,416     —     14,100  
 

Receivables, net of allowances

     51,325     3,833     —     55,158  
 

Inventories

     13,534     1,544     —     15,078  
 

Prepaids and other assets

     7,719     3,959     —     11,678  
 

Deferred tax assets

     7,925     73     —     7,998  
 

Assets of discontinued Non-Core Entities (See Note 1, 2 and 14)

     —     289,376     —     289,376  
                   
   

Total current assets

     157,032     309,924     —     466,956  

Investments

     20,090     —     —     20,090  

Property and equipment, net

     1,131,267     122,073     —     1,253,340  

Notes receivable, net of allowances

     3,074     1,283     —     4,357  

Note receivable from affiliate

     14,000     —     —     14,000  

Goodwill

     272,000     —     —     272,000  

Intangibles, net

     96,330     1,869     —     98,199  

Investment in non-guarantor subsidiaries

     (94,425 )   —     94,425     —  

Intercompany receivables

     62,005     —     (62,005 )   —  

Other assets

     33,957     616     —     34,573  
                   

TOTAL ASSETS

   $ 1,695,330   $ 435,765   $ 32,420   $ 2,163,515  
                   

LIABILITIES AND STOCKHOLDERS' DEFICIT

                          

CURRENT LIABILITIES:

                          
 

Current maturities of long-term debt

     7,259     2,715     —     9,974  
 

Membership deposits—current portion

     23,460     14,701     —     38,161  
 

Accounts payable

     21,533     1,207     —     22,740  
 

Accrued expenses

     24,352     1,770     —     26,122  
 

Accrued taxes

     16,468     8,600     —     25,068  
 

Other liabilities

     47,075     3,060     —     50,135  
 

Liabilities of discontinued Non-Core Entities (See Note 1, 2 and 14)

     —     353,260     —     353,260  
                   
   

Total current liabilities

     140,147     385,313     —     525,460  

Intercompany payables

     —     62,005     (62,005 )   —  

Long-term debt

     1,358,049     33,318     —     1,391,367  

Membership deposits

     153,287     51,966     —     205,253  

Deferred tax liability

     213,641     (1,390 )   —     212,251  

Other liabilities

     69,173     4,368     —     73,541  
                   
   

Total liabilities

     1,934,297     535,580     (62,005 )   2,407,872  

Commitments and contingencies (see Note 16)

                          

DEFICIT

                          
 

Additional paid-in capital

     —     (36,555 )   36,555     —  
 

Accumulated other comprehensive loss

     (2,709 )   (2,688 )   2,688     (2,709 )
 

Retained deficit

     (242,716 )   (55,182 )   55,182     (242,716 )
                   
   

Total stockholders' deficit

     (245,425 )   (94,425 )   94,425     (245,425 )
                   
 

Noncontrolling interests in consolidated subsidiaries

     6,458     (5,390 )   —     1,068  
                   
   

Total deficit

     (238,967 )   (99,815 )   94,425     (244,357 )
                   

TOTAL LIABILITIES AND DEFICIT

   $ 1,695,330   $ 435,765   $ 32,420   $ 2,163,515  
                   

F-41

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)

Condensed Consolidating Statements of Cash Flows
For the Year Ended December 28, 2010

 
   ClubCorp   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidating
Eliminations 		  Consolidated  

CASH FLOWS FROM OPERATING ACTIVITIES:

                                
   

Net cash provided by operating activities

   $ 7,625     125,286   $ 15,497   $ —     148,408  
                       

CASH FLOWS FROM INVESTING ACTIVITIES:

                                
 

Purchase of property and equipment

     —     (41,302 )   (1,557 )   —     (42,859 )
 

Acquisitions

     —     —     (7,443 )   —     (7,443 )
 

Proceeds from dispositions

     —     3,346     11     —     3,357  
 

Proceeds from insurance

     —     2,530     —     —     2,530  
 

Net change in restricted cash and capital reserve funds

     —     9,200     4,416     —     13,616  
 

Net intercompany transactions

     (976,126 )   —     —     976,126     —  
 

Proceeds from notes receivable

     —     14,000           —     14,000  
                       
   

Net cash used in investing activities

     (976,126 )   (12,226 )   (4,573 )   976,126     (16,799 )
                       

CASH FLOWS FROM FINANCING ACTIVITIES:

                                
 

Repayments of long-term debt

     —     (905,602 )   (1,168 )   —     (906,770 )
 

Proceeds from new debt borrowings

     725,000     1,071     4,000     —     730,071  
 

Repayments of Revolver

     —     (105,305 )   —     —     (105,305 )
 

Purchase of interest rate cap agreement

     (208 )   —     —     —     (208 )
 

Sale of interest rate cap agreement

     —     150     —     —     150  
 

Debt issuance costs

     (16,819 )   —     —     —     (16,819 )
 

Contribution from owners

     260,528     —     —     —     260,528  
 

Distribution to noncontrolling interests

     —     —     (416 )   —     (416 )
 

Distribution to KSL affiliates attributable to the ClubCorp Formation

     —     (110,537 )   —     73,490     (37,047 )
 

Net intercompany transactions

           990,987     (14,861 )   (976,126 )   —  
 

Change in membership deposits

     —     1,325     155     —     1,480  
                       
   

Net cash used in financing activities

     968,501     (127,911 )   (12,290 )   (902,636 )   (74,336 )
                       

CASH FLOWS FROM DISCONTINUED NON-CORE ENTITIES:

                                
 

Net cash provided by operating activities of discontinued Non-Core Entities

     —     —     192,203     —     192,203  
 

Net cash used in investing activities of discontinued Non-Core Entities

     —     —     (35 )   —     (35 )
 

Net cash used in financing activities of discontinued Non-Core Entities

     —     —     (192,564 )   (73,490 )   (266,054 )
                       
   

Net cash used in discontinued Non-Core Entities

     —     —     (396 )   (73,490 )   (73,886 )
                       

EFFECT OF EXCHANGE RATE CHANGES ON CASH

     —     —     (820 )   —     (820 )
                       

NET DECREASE IN CASH AND CASH EQUIVALENTS

     —     (14,851 )   (2,582 )   —     (17,433 )

CASH AND CASH EQUIVALENTS—BEGINNING OF PERIOD

     —     66,845     7,119     —     73,964  
                       

CASH AND CASH EQUIVALENTS—END OF PERIOD

   $ —   $ 51,994   $ 4,537   $ —   $ 56,531  
                       

Cash and cash equivalents

                                
   

Continuing operations

   $ —   $ 51,994   $ 4,537   $ —   $ 56,531  
   

Discontinued Non-Core Entities

   $ —   $ —   $ —   $ —   $ —  

F-42

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)

Condensed Consolidating Statements of Cash Flows
For the Year Ended December 29, 2009

 
   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidating
Eliminations 		  Consolidated  

CASH FLOWS FROM OPERATING ACTIVITIES:

                          
   

Net cash provided by operating activities

   $ 113,266   $ 10,968   $ —   $ 124,234  
                   

CASH FLOWS FROM INVESTING ACTIVITIES:

                          
 

Purchase of property and equipment

     (30,383 )   (1,999 )   —     (32,382 )
 

Proceeds from real estate ventures

     —     1,000     —     1,000  
 

Proceeds from dispositions

     1,238     1,210     —     2,448  
 

Proceeds from insurance

     5,167     —     —     5,167  
 

Net change in restricted cash and capital reserve funds

     67     (4,416 )   —     (4,349 )
 

Proceeds from notes receivable

     296     —     —     296  
                   
   

Net cash used in investing activities

     (23,615 )   (4,205 )   —     (27,820 )
                   

CASH FLOWS FROM FINANCING ACTIVITIES:

                          
 

Repayments of long-term debt

     (127,562 )   (635 )   —     (128,197 )
 

Proceeds from new debt borrowings, less allocations to Non-Core Entities

     11     —     —     11  
 

Repayments of Revolver

     (197 )   —     —     (197 )
 

Proceeds from Revolver borrowings

     2,560     —     —     2,560  
 

Sale of interest rate cap agreement

     576     —     —     576  
 

Contribution from owners

     (90,364 )   —     —     (90,364 )
 

Distribution to noncontrolling interests

     —     (588 )   —     (588 )
 

Intercompany transactions

     (12,004 )   (7,169 )   19,173     —  
 

Change in membership deposits

     598     (287 )   —     311  
                   
   

Net cash (used in) provided by financing activities

     (226,382 )   (8,679 )   19,173     (215,888 )
                   

CASH FLOWS FROM DISCONTINUED NON-CORE ENTITIES:

                          
 

Net cash provided by operating activities of discontinued Non-Core Entities

     —     8,704     —     8,704  
 

Net cash used in investing activities of discontinued Non-Core Entities

     —     (2,732 )   —     (2,732 )
 

Net cash used in financing activities of discontinued Non-Core Entities

     —     (6,654 )   (19,173 )   (25,827 )
                   
   

Net cash used in discontinued Non-Core Entities

     —     (682 )   (19,173 )   (19,855 )
                   

EFFECT OF EXCHANGE RATE CHANGES ON CASH

     —     (1,074 )   —     (1,074 )
                   

NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS

     (136,731 )   (3,672 )   —     (140,403 )

CASH AND CASH EQUIVALENTS—BEGINNING OF PERIOD

     203,576     10,791     —     214,367  
                   

CASH AND CASH EQUIVALENTS—END OF PERIOD

   $ 66,845   $ 7,119   $ —   $ 73,964  
                   

Cash and cash equivalents

                          
   

Continuing operations

   $ 66,845   $ 6,723   $ —   $ 73,568  
   

Discontinued Non-Core Entities

   $ —   $ 396   $ —   $ 396  

F-43

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

17. FINANCIAL STATEMENTS OF GUARANTORS (Continued)

Condensed Consolidating Statements of Cash Flows
For the Year Ended December 30, 2008

 
   Guarantor
Subsidiaries 		  NonGuarantor
Subsidiaries 		  Consolidating
Eliminations 		  Consolidated  

CASH FLOWS FROM OPERATING ACTIVITIES:

                          
   

Net cash provided by operating activities

   $ 68,379   $ 13,261   $ —   $ 81,640  
                   

CASH FLOWS FROM INVESTING ACTIVITIES:

                          
 

Purchase of property and equipment

     (86,745 )   (3,033 )   —     (89,778 )
 

Proceeds from dispositions

     178     —     —     178  
 

Proceeds from surface rights

     19,869     —     —     19,869  
 

Proceeds from insurance

     9,853     —     —     9,853  
 

Net change in restricted cash and capital reserve funds

     12,259     —     —     12,259  
 

Proceeds from notes receivable

     108     —     —     108  
                   
   

Net cash used in investing activities

     (44,478 )   (3,033 )   —     (47,511 )
                   

CASH FLOWS FROM FINANCING ACTIVITIES:

                          
 

Repayments of long-term debt

     (27,910 )   (14,312 )   —     (42,222 )
 

Proceeds from new debt borrowings, less allocations to Non-Core Entities

     (21,390 )   32,000     —     10,610  
 

Repayments of Revolver

     (209,000 )   —     —     (209,000 )
 

Proceeds from Revolver borrowings

     312,000     —     —     312,000  
 

Purchase of interest rate cap agreement

     (10,104 )   —     —     (10,104 )
 

Debt issuance costs

     (270 )   (890 )   —     (1,160 )
 

Contribution from owners

     190     —     —     190  
 

Intercompany transactions

     46,194     (27,776 )   (18,418 )   —  
 

Change in membership deposits

     2,588     289     —     2,877  
                   
   

Net cash provided by (used in) financing activities

     92,298     (10,689 )   (18,418 )   63,191  
                   

CASH FLOWS FROM DISCONTINUED NON-CORE ENTITIES:

                          
 

Net cash provided by operating activities of discontinued Non-Core Entities

     —     6,778     —     6,778  
 

Net cash used in investing activities of discontinued Non-Core Entities

     —     (10,768 )   —     (10,768 )
 

Net cash (used in) provided by financing activities of discontinued Non-Core Entities

     —     (1,879 )   18,418     16,539  
                   
   

Net cash (used in) provided by discontinued Non-Core Entities

     —     (5,869 )   18,418     12,549  
                   

EFFECT OF EXCHANGE RATE CHANGES ON CASH

     —     5,972     —     5,972  
                   

NET INCREASE IN CASH AND CASH EQUIVALENTS

     116,199     (358 )   —     115,841  

CASH AND CASH EQUIVALENTS—BEGINNING OF PERIOD

     87,377     11,149     —     98,526  
                   

CASH AND CASH EQUIVALENTS—END OF PERIOD

   $ 203,576   $ 10,791   $ —   $ 214,367  
                   

Cash and cash equivalents

                          
   

Continuing operations

   $ 203,576   $ 9,713   $ —   $ 213,289  
   

Discontinued Non-Core Entities

   $ —   $ 1,078   $ —   $ 1,078  

F-44

Table of Contents


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(amounts in thousands, unless otherwise indicated)

18. RELATED PARTY TRANSACTIONS

        During 2009, we recorded a note receivable due in 2012 of $14.0 million from the sale of a business, sports and alumni club to an affiliate of KSL. See Note 14. We realized $0.5 million and $1.0 million in interest related to this note in the years ended December 28, 2010 and December 29, 2009, respectively. During 2010, we received $14.0 million in repayment of this note.

        During 2010, we paid KSL approximately $1 million in management fees. During 2009, we paid KSL approximately $1.0 million in management fees. During 2008, we paid KSL approximately $1.3 million comprised primarily of $1.0 million in management fees and $0.3 million in fees related to negotiation of the refinancing of the GECC loan facility. See Note 11.

        In 2010, investment vehicles controlled by KSL contributed $260.5 million as equity capital to ClubCorp. We made a distribution to our owners of $90.3 million in 2009.

        As of December 28, 1010, we had a receivable from discontinued Non-Core Entities in the amount of $0.7 million for legal fees paid on their behalf.

        As of December 28, 2010, we had receivables of $0.3 million for outstanding advances from golf and business club ventures in which we had an equity method investment. We received $0.5 million in management fees from these ventures. We had a receivable of $1.8 million for volume rebates from the supplier firm in which we have an equity method investment. See Note 5.

        Transactions with related parties prior to and during the ClubCorp Formation are described in Note 1, 2 and 14.

19. SUBSEQUENT EVENTS

        We have evaluated subsequent events through March 28, 2011, the day the financial statements were issued.

F-45

GRAPHIC

ClubCorp Club Operations, Inc.

Offer to Exchange


        $415,000,000 aggregate principal amount at maturity of its 10% Senior Notes due 2018, which have been registered under the Securities Act of 1933, for any and all of its outstanding 10% Senior Notes due 2018.

        All dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters with respect to their unsold allotments or subscriptions or otherwise.

Table of Contents


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 20.    Indemnification of Directors and Officers.

        ClubCorp Club Operations, Inc.; ClubCorp Airways Golf, Inc.; ClubCorp Aliso Viejo Holding Corp.; ClubCorp Aven Holdings, Inc.; ClubCorp Braemar Country Club, Inc.; ClubCorp Bunker Hill Club, Inc.; ClubCorp Buying Services, Inc.; ClubCorp Canyon Crest Country Club, Inc.; ClubCorp Center Club, Inc.; ClubCorp Coto Property Holdings, Inc.; ClubCorp Crow Canyon Management Corp.; ClubCorp Desert Falls Country Club, Inc.; ClubCorp GCL Corporation; ClubCorp Granite Bay Management, Inc.; ClubCorp IW Golf Club, Inc.; ClubCorp Mission Hills Country Club, Inc.; ClubCorp Porter Valley Country Club, Inc.; ClubCorp San Jose Club, Inc.; ClubCorp Shadow Ridge Golf Club, Inc.; ClubCorp Spring Valley Lake Country Club, Inc.; ClubCorp Symphony Towers Club, Inc.; ClubCorp Teal Bend Golf Club, Inc.; ClubCorp Turkey Creek Golf Club, Inc.; ClubCorp USA, Inc.; Owners Club Asset Company and The Owner's Club, Inc. (each a "Delaware Corporation" and, collectively, the "Delaware Corporations")

        Section 102 of the Delaware General Corporation Law (the "DGCL"), as amended, allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damage for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of the DGCL or obtained an improper personal benefit.

        Section 145 of the DGCL provides, among other things, that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the Delaware corporation) by reason of the fact that the person is or was a director, officer, agent or employee of the Delaware corporation or is or was serving at its request as a director, officer, agent or employee of another corporation, partnership, joint venture, trust or other enterprise against expenses, including attorneys' fees, judgment, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding. The power to indemnify applies (i) if the person is successful on the merits or otherwise in defense of any action, suit or proceeding or (ii) if the person acted in good faith and in a manner he or she reasonably believed to be in the best interest, or not opposed to the best interest, of the Delaware corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the Delaware corporation as well, but only to the extent of defense expenses (including attorneys' fees but excluding amounts paid in settlement) actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in these actions no indemnification shall be made in the event of any adjudication of negligence or misconduct in the performance of his or her duties to the Delaware corporation, unless the court believes that in light of all the circumstances indemnification should apply.

        Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for these actions. A director who was either absent when the unlawful actions were approved or dissented at the time, may avoid liability by causing his or her dissent to these actions to be entered in the books containing the minutes of the meetings of the board of directors at the time the action occurred or immediately after the absent director receives notice of the unlawful acts.

        The Delaware Corporations' certificates of incorporation, except for ClubCorp USA, Inc., Owners Club Asset Company and The Owner's Club, Inc., limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the DGCL.

II-1

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        Owners Club Asset Company and The Owner's Club, Inc.'s certificates of incorporation limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except (i) for breach of the duty of loyalty, (ii) for acts in bad faith, intentional misconduct or knowing violations of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived improper personal benefit.

        The Delaware Corporations' by-laws, except for ClubCorp Aven Holdings, Inc., ClubCorp Buying Services, Inc., ClubCorp USA, Inc. and The Owner's Club, Inc., provide that each Delaware Corporation shall indemnify any person who is a director, officer or legal representative of the Delaware Corporation or who is serving in such capacity at another entity at the request of the Delaware Corporation. Each Delaware Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Delaware Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Delaware Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Delaware Corporation.

        ClubCorp Aven Holdings, Inc., ClubCorp Buying Services, Inc., ClubCorp USA, Inc., Owners Club Asset Company and The Owner's Club, Inc.'s by-laws each provide for indemnification of their directors, officers and employees if (i) the person sued is successful or the proceeding is settled and (ii) the court finds that the person's conduct merits indemnity. These Delaware Corporations' boards of directors may also authorize indemnification of directors, officers and employees if such person was acting in good faith within what the person reasonably believed to be inside the scope of his or her authority and in the Delaware Corporation's best interests.

        191 Athletic Club Management Company, LLC; 191 CC Operating Co., LLC; AZ Club, LLC; CCA Golf Course Holdco, LLC; CCA Mezzanine Holdco, LLC; ClubCorp Gen Par of Texas, L.L.C.; ClubCorp Golf of California, L.L.C.; ClubCorp Golf of Florida, L.L.C.; ClubCorp Golf of North Carolina, L.L.C.; ClubCorp Hamlet, LLC; ClubCorp Management Company for Stone Creek, LLC; ClubCorp Mezzanine Borrower, LLC; ClubCorp Mortgage Borrower, LLC; ClubCorp TTC, LLC; ClubCorp Willow Creek, LLC; ClubCorp Wind Watch, LLC; Currituck Golf, LLC; Empire Ranch, LLC; Farms of New Kent Management, LLC; FFFC Golf Acquisitions, L.L.C.; Laurel Springs Holdco, LLC; MAC Club, LLC; The Owner's Club of South Carolina, L.L.C. and UMass Club Management, LLC (each a "Delaware LLC" and, collectively, the "Delaware LLCs")

        The Delaware LLCs are each empowered by Section 18-108 of the Delaware Limited Liability Company Act to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.

        Pursuant to each of the Delaware LLCs' LLC Agreements, their members, officers, directors, employees or agents or any employee, representative, agent or affiliate of their members shall be indemnified, and shall not be liable to their respective Delaware LLC or any other party to the LLC Agreement, for any loss, damage or claim incurred by reason of any act or omission, except to the extent such liability was outside of such person's authority or due to bad faith, gross negligence or willful misconduct. Each Delaware LLC shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification.

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        Capital City Club of Montgomery, Inc. and The Summit Club, Inc. (each an "Alabama Corporation" and, collectively, the "Alabama Corporations")

        The Code of Alabama 1975 (the "Alabama Code"), Section 10A-2-8.51 and 10A-2-8.56 gives a corporation power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement reasonably incurred by him in connection with such action, suit or proceeding if such person acted in good faith and in a manner he reasonably believed to be in the best interests of the corporation, when acting in his or her official capacity with the corporation, or, in all other cases, not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. No indemnification shall be made, however, in respect of any claim, issue or matter as to which such person shall have not met the applicable standard of conduct, shall have been adjudged to be liable to the corporation or, in connection with any other action, suit or proceeding charging improper personal benefit to such person, if such person was adjudged liable on the basis that personal benefit was improperly received by him, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for reasonable expenses which such court shall deem proper.

        Sections 10A-2-8.52 and 10A-2-8.56 of the Alabama Code state that, to the extent that a director or officer of a corporation has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) reasonably incurred by him in connection therewith, notwithstanding that he has not been successful on any other claim, issue or matter in any such action, suit or proceeding.

        The Alabama Corporations' articles of incorporation include a provision that, to the extent not prohibited by applicable law, limits the personal liability of their directors for monetary damages for actions or omissions, except for (i) the amount of a financial benefit received by such director to which such director is not entitled; (ii) an intentional infliction of harm on the Alabama Corporation or its shareholders by such director; (iii) a violation of Section 10-2B-8.33 of the Alabama Code or any successor provision to such section; (iv) an intentional violation of criminal law; or (v) a breach of the duty of loyalty.

        The Alabama Corporations' bylaws provide that each Alabama Corporation shall indemnify any person who is a director, officer or legal representative of the Alabama Corporation or who is serving in such capacity at another entity at the request of the Alabama Corporation. To the extent not prohibited by applicable law, each Alabama Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then a person may file suit for the unclaimed amount and, to the extent not prohibited by applicable law, the Alabama Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise.

        GRanch Golf Club, Inc. (the "Arizona Corporation")

        Section 10-851 of the Arizona Revised Statutes permits a corporation to indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the

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proceeding if all of the following conditions exist: (i) the individual's conduct was in good faith; (ii) the individual reasonably believed in the case of conduct in an official capacity with the corporation, that the conduct was in its best interests and in all other cases, that the conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceedings, the individual had no reasonable cause to believe the conduct was unlawful. Section 10-851 of the Arizona Revised Statutes permits a corporation to indemnify an individual made a party to a proceeding because the director engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation pursuant to Section 10-202(B)(2) of the Arizona Revised Statutes. The termination of a proceeding by judgment, order, settlement or conviction or on a plea of no contest or its equivalent is not of itself determinative that the director did not meet the standard of conduct described in Section 10-851 of the Arizona Revised Statutes. Under Section 10-851 of the Arizona Revised Statutes, a corporation may not indemnify a director either: (i) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (ii) in connection with any other proceeding charging improper financial benefit to the director, whether or not involving action in the director's official capacity, in which the director was adjudged liable on the basis that financial benefit was improperly received by the director. Indemnification permitted under Section 10-851 of the Arizona Revised Statutes in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding.

        The Arizona Corporation's certificate of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the Arizona Revised Statutes.

        The Arizona Corporation's Amended and Restated By-Laws provide that it shall indemnify any person who is a director, officer or legal representative of the Arizona Corporation or who is serving in such capacity at another entity at the request of the Arizona Corporation. The Arizona Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Arizona Corporation bears the burden of proving that he or she is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The Arizona Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Arizona Corporation.

        Anthem Golf, LLC (the "Arizona LLC")

        Section 29-610 of the Arizona Revised Statutes allows a limited liability company to indemnify a member, manager, employee, officer or agent or any other person.

        Pursuant to the Arizona LLC's Amended and Restated Limited Liability Company Operating Agreement, its member, officers, directors, employees or agents or any employee, representative, agent or affiliate of its member shall be indemnified, and shall not be liable to the Arizona LLC or any other party to the Amended and Restated Limited Liability Company Operating Agreement, for any loss, damage or claim incurred by reason of any act or omission made in good faith on behalf of the Arizona LLC and in a manner reasonably believed to be within the scope of authority conferred on such person under the Amended and Restated Limited Liability Company Operating Agreement, except to the extent such liability was due to bad faith, gross negligence or willful misconduct on the part of the party to be indemnified. The Arizona LLC shall advance expenses incurred by any such persons, provided that they undertake to repay all such advances if it is determined that the person to whom such advances were made is not entitled to indemnification.

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        Diamante' Golf Club Management, Inc. and Diamante' Golf Club Partners, Inc. (each an "Arkansas Corporation" and, collectively, the "Arkansas Corporations")

        Section 4-27-850 of the Arkansas Business Corporation Act of 1987 (the "ABCA") permits a corporation, under specified circumstances, to indemnify its directors, officers, employees or agents against expenses (including attorney's fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact that the directors, officers, employees or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. Section 4-27-850(c) of the ABCA provides that, to the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding, or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him. Section 4-27-850(e) of the ABCA provides that expenses incurred by an officer or director in defending a civil or criminal action, suit, or proceeding may be paid by the corporation in advance of the final disposition of such action, suit, or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation as authorized in this section. Section 4-27-850(g) of the ABCA also affords a corporation the power to obtain insurance on behalf of its directors and officers against liabilities incurred by them in these capacities.

        The Arkansas Corporations' articles of incorporation limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the ABCA.

        The Arkansas Corporations' by-laws provide that each Arkansas Corporation shall indemnify any person who is a director, officer or legal representative of the Arkansas Corporation or who is serving in such capacity at another entity at the request of the Arkansas Corporation. Each Arkansas Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Arkansas Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Arkansas Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Arkansas Corporation.

        MH Villas, Inc. (the "California Corporation")

        Section 317 of the California Corporations Code (the "CCC") authorizes a court to award, or a corporation to grant, indemnity to officers, directors, employees and other agents for reasonable expenses incurred in connection with the defense or settlement of an action by or in the right of the corporation or in a proceeding by reason of the fact that the person is or was an officer, director,

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employee or agent of the corporation. Indemnity is available where the person party to a proceeding or action acted in good faith and in a manner reasonably believed to be in the best interests of the corporation and its shareholders and, with respect to criminal actions, had no reasonable cause to believe his conduct was unlawful. To the extent a corporation's officer, director, employee or agent is successful on the merits in the defense of any proceeding or any claim, issue or related matter, that person shall be indemnified against expenses actually and reasonably incurred. Under Section 317 of the CCC, expenses incurred in defending any proceeding may be advanced by the corporation prior to the final disposition of the proceeding upon receipt of any undertaking by or on behalf of the officer, director, employee or agent to repay that amount if it is ultimately determined that the person is not entitled to be indemnified. Indemnifications are to be made (i) by a majority vote of a quorum consisting of directors who are not parties to such proceedings, (ii) if such a quorum of directors is not obtainable, by independent legal counsel in a written opinion, (iii) upon approval of the shareholders, with the shares owned by the person to be indemnified not being entitled to vote thereon, or (iv) by the court in which such proceeding is or was pending upon application made by either the corporation, the agent, the attorney, or other person rendering services in connection with the defense. The indemnification provided by Section 317 of the CCC is not exclusive of any other rights to which those seeking indemnification may be entitled.

        The bylaws of the California Corporation, as amended to date, provide that it shall indemnify any person who is or was a director or officer of the California Corporation or, while a director or officer of the California Corporation, is or was serving at the request of the California Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such persons. The California Corporation shall advance expenses incurred by such persons in defending any proceeding in advance of its final disposition, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days after a written claim therefor has been received by the California Corporation, then such person may file suit for the unpaid amount and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the California Corporation shall bear the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The California Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the California Corporation. The California Corporation's obligation, if any, to indemnify or to advance expenses to any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification or advancement of such expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

        Aliso Viejo Golf Club Joint Venture (the "California General Partnership")

        The California Uniform Partnership Act of 1994 (Section 16401(c)-(e) of the CCC) provides that the partnership must reimburse a partner for payments made and indemnify a partner for liabilities incurred by the partner in the ordinary course of the business of the partnership or for the preservation of its business or property. A partnership shall reimburse a partner for an advance to the partnership beyond the amount of capital the partner agreed to contribute. A payment or advance made by a partner that gives rise to a partnership obligation as discussed above constitutes a loan to the partnership that accrues interest from the date of the payment or advance.

        The Statement of Partnership Authority of the California General Partnership does not provide for indemnification of its officers and directors. The Joint Venture Agreement with respect to the

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California General Partnership, as amended to date (the "JV Agreement"), provides that if any claim, liability or expense is asserted against the Joint Venture or a Venturer (each as defined therein) by reason of the sole negligence of a Venturer or an act or omission by a Venturer, then the Venturer committing such negligence or performing such act shall indemnify and save harmless the Joint Venture and the other Venturers from and against any and all loss resulting therefrom. Such indemnification does not apply to any claim or liability with respect to any mortgages, loans, deeds of trust, or other encumbrances against the Real Property (as defined in the JV Agreement) which are nonrecourse as to the Joint Venture and the Venturers.

        Aspen Glen Golf Club Management Company (the "Colorado Corporation")

        Sections 7-109-101 through 7-109-110 of the Colorado Business Corporation Act (the "CBCA") provide in part that a corporation shall have the power to indemnify any person who is or was a party or is threatened to be made a party to a proceeding by reason of the fact that such person is or was a director, officer, employee or agent of the corporation against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually incurred by such person in connection with such proceeding if he or she acted in good faith and reasonably believed (i) in the case of conduct in an official capacity with the corporation, that such conduct was in the corporation's best interests, (ii) in all other cases, that such conduct was at least not opposed to the corporation's best interests, and (iii) in the case of any criminal proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Any indemnity provided under the CBCA in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding. A corporation may not indemnify a person under the CBCA in connection with (a) a proceeding by or in the right of the corporation in which such person was adjudged liable to the corporation or (b) any other proceeding charging that the person derived an improper personal benefit. Unless limited by its articles of incorporation, a corporation shall indemnify a person who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which such person was a party because such person is or was a director, against reasonable expenses incurred by such person in connection with the proceeding.

        The corporation may advance expenses to any person under the CBCA in advance of a final disposition of the proceeding if: (i) such person furnishes a written affirmation of such person's good faith belief that he or she has met the standard of conduct as set forth in the CBCA; (ii) such person furnishes a written undertaking to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct; and (iii) a determination is made that the facts then known to those making the determination would not preclude indemnification under the CBCA.

        The articles of incorporation of the Colorado Corporation, as amended to date, provides that a director shall not be liable to the Colorado Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the CBCA.

        The bylaws of the Colorado Corporation, as amended to date, provide that it shall indemnify any person who is or was a director or officer of the Colorado Corporation or, while a director or officer of the Colorado Corporation, is or was serving at the request of the Colorado Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such persons. The Colorado Corporation shall advance expenses incurred by such persons in defending any proceeding in advance of its final disposition, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days after a written claim therefor has been received by the Colorado Corporation, then such person may file suit for the unpaid amount and, if successful in whole or in part, shall be entitled to be paid the expense of

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prosecuting such claim. In any such action the Colorado Corporation shall bear the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The Colorado Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Colorado Corporation. The Colorado Corporation's obligation, if any, to indemnify or to advance expenses to any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification or advancement of such expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

        Centre Club, Inc.; Citrus Club, Inc.; ClubCorp Graphics, Inc.; Countryside Country Club, Inc.; DeBary Management Corp.; Haile Plantation Management Corp.; Hunter's Green Acquisition Corp.; Management Company for Eagle Ridge and The Preserve; Monarch EP Management Corp.; Queens Harbour Corporation; Tampa Palms Club, Inc.; Tower Club, Inc.; University Club Management Co., Inc. and University Club, Inc. (each a "Florida Corporation" and, collectively, the "Florida Corporations")

        Section 607.0850 of the Florida Business Corporation Act (the "FLBCA") permits, in general, a Florida corporation to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that he or she is or was a director or officer of the corporation, or served another entity in any capacity at the request of the corporation, against liability incurred in connection with such proceeding, including any appeal thereof, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interest of the corporation and, in criminal actions or proceedings, additionally had no reasonable cause to believe that his or her conduct was unlawful. In actions brought by or in the right of the corporation, a corporation may indemnify such person against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred by such person in connection with the defense or settlement of such proceeding, including any appeal thereof, if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person in fairly and reasonably entitled to indemnification for such expenses which the court shall deem proper.

        Section 607.0850(6) of the FLBCA permits the corporation to pay such costs or expenses in advance of a final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if he or she is ultimately found not to be entitled to indemnification under the FLBCA.

        Section 607.0850 of the FLBCA provides that the indemnification and advancement of expense provisions contained in the FLBCA shall not be deemed exclusive of any rights to which a director or officer seeking indemnification or advancement of expenses may be entitled.

        The Florida Corporations' certificates of incorporation, except for ClubCorp Graphics, Inc. and Monarch EP Management Corp., limit the personal liability of their directors to the Florida Corporations for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the FLBCA.

        The Florida Corporations' by-laws, except for ClubCorp Graphics, Inc., Monarch EP Management Corp. and Tampa Palms Club, Inc., provide that each Florida Corporation shall indemnify any person who is a director, officer or legal representative of the Florida Corporation or who is serving in such

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capacity at another entity at the request of the Florida Corporation. Each Florida Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Florida Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Florida Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Florida Corporation.

        The by-laws of ClubCorp Graphics, Inc. and Tampa Palms Club, Inc. each provide for indemnification of their directors, officers and employees if (i) the person sued is successful or the proceeding is settled and (ii) the court finds that the person's conduct merits indemnity. These Florida Corporations' boards of directors may also authorize indemnification of directors, officers and employees if such person was acting in good faith within what the person reasonably believed to be inside the scope of his or her authority and in the Florida Corporation's best interests.

        Monarch EP Management Corp.'s by-laws provide that its board of directors shall authorize the corporation to indemnify any present or former director, officer, employee, or agent of the corporation against judgments, penalties, fines, settlements, and reasonable expenses actually incurred.

        HPG, L.C. (the "Florida LLC")

        Section 608.4229 of the Florida Limited Liability Company Act provides that a limited liability company may, and shall have the power to, but shall not be required to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever. Notwithstanding that provision, indemnification or advancement of expenses shall not be made to or on behalf of any member, manager, managing member, officer, employee, or agent if a judgment or other final adjudication establishes that the actions, or omissions to act, of such member, manager, managing member, officer, employee, or agent were material to the cause of action so adjudicated and constitute any of the following: (i) a violation of criminal law, unless the member, manager, managing member, officer, employee, or agent had no reasonable cause to believe such conduct was unlawful; (ii) a transaction from which the member, manager, managing member, officer, employee, or agent derived an improper personal benefit; (iii) in the case of a manager or managing member, a circumstance under which the liability provisions of Section 608-426 are applicable; or (iv) willful misconduct or a conscious disregard for the best interests of the limited liability company in a proceeding by or in the right of the limited liability company to procure a judgment in its favor or in a proceeding by or in the right of a member.

        Pursuant to the Florida LLC's LLC Agreement, its member, officers, directors, employees or agents or any employee, representative, agent or affiliate of its member shall be indemnified, and shall not be liable to the Florida LLC or any other party to the LLC Agreement, for any loss, damage or claim incurred by reason of any act or omission, except to the extent such liability was outside of such person's authority or due to bad faith, gross negligence or willful misconduct. The Florida LLC shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification.

        First City Club Management, Inc.; GP Bear's Best Atlanta, Inc.; Northwood Management Corp.; The 191 Club, Inc. and The Buckhead Club, Inc. (each a "Georgia Corporation" and, collectively, the "Georgia Corporations")

        Subsection (a) of Section 14-2-851 of the Georgia Business Corporation Code (the "GABCC") provides that a corporation may indemnify an individual made a party to a proceeding because he or she is or was a director against liability incurred in the proceeding if: (i) such individual conducted

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himself or herself in good faith and (ii) such individual reasonably believed: (A) in the case of conduct in his or her official capacity, that such conduct was in the best interests of the corporation; (B) in all other cases, that such conduct was at least not opposed to the best interests of the corporation; and (C) in the case of any criminal proceeding, that the individual had no reasonable cause to believe such conduct was unlawful. Subsection (d) of Section 14-2-851 of the GABCC provides that a corporation may not indemnify a director: (i) in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding, if it is determined that the director has met the relevant standard of conduct or (ii) or in connection with any proceeding with respect to conduct for which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving action in his or her official capacity. Notwithstanding the foregoing, pursuant to Section 14-2-854, a court shall order a corporation to indemnify or give an advance for expenses to a director if such court determines the director is entitled to indemnification or advance for expenses under Section 14-2-854 or if it determines that in view of all relevant circumstances, it is fair and reasonable, even if the director has not met the standard of conduct set forth in subsections (a) and (b) of Section 14-2-851 of the GABCC or was adjudged liable in a proceeding referred to in subsection (d) of Section 14-2-851 of the GABCC, but if the director was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred by the director in connection with the proceeding.

        Section 14-2-852 of the GABCC provides that a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because he or she was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. Subsection (c) of Section 14-2-857 of the GABCC provides that an officer of the corporation who is not a director is entitled to mandatory indemnification under Section 14-2-852 and may apply to a court under Section 14-2-854 for indemnification or advances for expenses, in each case to the same extent to which a director may be entitled to indemnification or advances for expenses under those provisions. In addition, subsection (d) of Section 14-2-857 provides that a corporation may also indemnify and advance expenses to an employee or agent who is not a director to the extent, consistent with public policy, that may be provided by its articles of incorporation, bylaws, action of its board of directors or contract.

        The Georgia Corporations' certificates of incorporation limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the GABCC.

        The Georgia Corporations' by-laws provide that each Georgia Corporation shall indemnify any person who is or was a director, officer or legal representative of the Georgia Corporation or who is serving in such capacity at another entity at the request of the Georgia Corporation to the fullest extent permitted by Georgia law. Each Georgia Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Georgia Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Georgia Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Georgia Corporation. The indemnification rights of the aforesaid parties may be subordinate to, effected and/or negated by agreements entered into by the Georgia Corporations with various lenders from time to time.

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        ClubCorp Golf of Georgia, L.P. (the "Georgia Limited Partnership")

        Section 14-9-108 of the Georgia Code provides that a limited partnership may indemnify any partner or other person from and against any and all claims and demands, except that the partnership shall not indemnify for intentional misconduct or knowing violation of the law or for any transaction for which the person received a personal benefit in violation of the partnership agreement.

        Pursuant to the Georgia Limited Partnership's Limited Partnership Agreement, its general partner, the limited partner, employees or agents of the Georgia Limited Partnership, or any employee, representative, manager, agent or affiliate of the general partner or the limited partner, shall not be liable to the Georgia Limited Partnership or any other party to the Limited Partnership Agreement for any loss, damage or claim incurred by reason of any act or omission on behalf of the Georgia Limited Partnership, except to the extent such liability was outside of such person's authority or due to bad faith, gross negligence or willful misconduct. To the fullest extent permitted by Georgia law, the Georgia Limited Partnership shall indemnify such persons for any such loss, damage or claim, except to the extent such liability was outside of such person's authority or due to bad faith, gross negligence or willful misconduct. The indemnity provided by the Georgia Limited Partnership shall be paid only to the extent of the Georgia Limited Partnership's assets. The Georgia Limited Partnership shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification.

        The Metropolitan Club of Chicago, Inc. (the "Illinois Corporation")

        Under Section 8.75 of the Illinois Business Corporation Act of 1983, (the "ILBCA"), a corporation may indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In actions and suits brought by or in the right of the corporation, a corporation may indemnify such person against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, provided that no indemnification may be made with respect to any claim, issue or matter as to which such person has been adjudged to have been liable to the corporation, unless, and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper. To the extent that a present or former director, officer or employee of a corporation has been successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to above or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith, if the person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation.

        Section 8.75(f) of the ILBCA further provides that the indemnification and advancement of expenses provided by or granted under Section 8.75 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law,

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agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

        The Illinois Corporation's certificate of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the ILBCA.

        The Illinois Corporation's by-laws provide that the Illinois Corporation shall indemnify and hold harmless against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Illinois Corporation or, while a director or officer of the corporation, is or was serving in such capacity at another entity at the request of the Illinois Corporation. The Illinois Corporation shall advance expenses incurred by any such person in defending any such action, suit or proceeding in advance of its final disposition, provided that such person undertakes to repay all amounts advanced if it is ultimately determined that such person is not entitled to indemnification. If a claim for indemnification or advancement of expenses is not paid within thirty days after a written demand is received by the Illinois Corporation, then such person may file suit for the unpaid amount of such claim. The Illinois Corporation bears the burden of proving that such person is not entitled to indemnification or advancement of expenses. The right to indemnification and advancement of expenses is not exclusive of any other rights to which a person may be entitled by law, the Illinois Corporation's organizational documents, agreement, vote of shareholders or disinterested directors or otherwise. The Illinois Corporation shall be required to indemnify such person in connection with an action, suit or proceeding commenced by such person only if the action, suit or proceeding commenced by such person was specifically authorized by the board of directors of the Illinois Corporation.

        Knollwood Country Club, Inc. and Skyline Club, Inc. (each an "Indiana Corporation" and, collectively, the "Indiana Corporations")

        Chapter 37 of Indiana Code 23-1, the Indiana Business Corporation Law (the "IBCL"), states that a corporation may indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if (i) the individual's conduct was in good faith; and (ii) the individual reasonably believed, (a) in the case of conduct in the individual's official capacity with the corporation, that the individual's conduct was in its best interests, and, (b) in all other cases, that the individual's conduct was at least not opposed to the corporation's best interests; and (iii) in the case of any criminal proceeding, the individual either had reasonable cause to believe the individual's conduct was lawful or had no reasonable cause to believe the individual's conduct was unlawful. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in Chapter 37 of the IBCL.

        Unless limited by its articles of incorporation, a corporation must indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. A corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if the director furnishes the corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in Chapter 37 of the IBCL, the director furnishes the corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet such standard of conduct and a determination is made that the facts then known to those making the determination would not preclude indemnification under Chapter 37 of the IBCL. A corporation may

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not indemnify a director unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth under Chapter 37 of the IBCL. The determination may be made by the board of directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding, or by other methods specified in Chapter 37 of the IBCL.

        A corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the corporation, or who, while a director, officer, employee, or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, member, manager, trustee, employee, or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, member, manager, employee, or agent.

        The indemnification and advance for expenses provided for or authorized by Chapter 37 of the IBCL does not exclude any other rights to indemnification and advance for expenses that a person may have under a corporation's articles of incorporation, bylaws, a resolution of the board of directors or of the shareholders or any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding.

        The Indiana Corporations' certificates of incorporation limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the IBCL.

        The Indiana Corporations' by-laws provide that each Indiana Corporation shall indemnify any person who is a director, officer or legal representative of the Indiana Corporation or who is serving in such capacity at another entity at the request of the Indiana Corporation. Each Indiana Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Indiana Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Indiana Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Indiana Corporation.

        LionsGate Golf Club, Inc. (the "Kansas Corporation")

        Section 17-6305 of the Kansas General Corporation Code (the "KGCC") provides that a Kansas corporation shall have the power to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, judgments, fines and amounts paid in settlement in connection with such action, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation; and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. Notwithstanding the preceding sentence, no indemnification is permitted in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation, unless otherwise determined by the court in which such proceeding is pending.

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        The Kansas Corporation's Amended and Restated Articles of Incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the KGCC.

        The Kansas Corporation's Amended and Restated By-laws provide that the Kansas Corporation shall indemnify any person who is a director, officer or legal representative of the Kansas Corporation or who is serving in such capacity at another entity at the request of the Kansas Corporation. The Kansas Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Kansas Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The Kansas Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Kansas Corporation.

        Southern Trace Country Club of Shreveport, Inc. (the "Louisiana Corporation")

        Section 83A(1) of the Louisiana Business Corporation Law (the "LBCL") permits corporations to indemnify any person who was or is a party or is threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, including any action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another business, foreign or nonprofit corporation, partnership, joint venture, or other enterprise, against expenses, including attorneys' fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.

        Section 83A(2) of the LBCL provides that, in case of actions by or in the right of the corporation, the indemnity shall be limited to expenses, including attorneys fees and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the action to conclusion, actually and reasonably incurred in connection with the defense or settlement of such action, and that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable for willful or intentional misconduct in the performance of his duty to the corporation, unless, and only to the extent that the court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

        Section 83(B) of the LBCL provides that to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Any indemnification under Section 83A of the LBCL, unless ordered by the court, shall be made by the corporation only as authorized in a specific case upon a determination that the applicable standard of conduct has been met, and such determination shall be made: (i) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit, or proceeding; (ii) if such a quorum is not obtainable and the board of directors so directs, by independent legal counsel; or (iii) by the stockholders.

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        The indemnification provided for by Section 83 of the LBCL shall not be deemed exclusive of any other rights to which the person indemnified is entitled under any bylaw, agreement, authorization of stockholders or directors, regardless of whether directors authorizing such indemnification are beneficiaries thereof, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his heirs and legal representative; however, no such other indemnification measure shall permit indemnification of any person for the results of such person's willful or intentional misconduct.

        The Louisiana Corporation's certificate of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the LBCL.

        The Louisiana Corporation's by-laws provide that the Louisiana Corporation shall indemnify any person who is a director, officer or legal representative of the Louisiana Corporation or who is serving in such capacity at another entity at the request of the Louisiana Corporation to the fullest extent permitted by applicable law, if such person has acted in good faith an in a manner that he or she reasonably believed to in, or not opposed to, the best interest of the Louisiana Corporation. The Louisiana Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Louisiana Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The Louisiana Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Louisiana Corporation.

        Club at Boston College, Inc. and New England Country Club Management, Inc. (each a "Massachusetts Corporation" and, collectively, the "Massachusetts Corporations")

        Section 8.51 of Chapter 156D of the Massachusetts General Laws (the "MGL") provides that a corporation may indemnify a director against liability if (i) (1) he conducted himself in good faith; (2) he reasonably believed that his conduct was in the best interest of the corporation or that his conduct was at least not opposed to the best interests of the corporation; and (3) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful; or (ii) he engaged in conduct for which he shall not be liable under a provision of the corporation's articles of organization authorized by Section 2.02(b)(4) of Chapter 156D of the MGL. Section 8.52 of Chapter 156D of the MGL provides that a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.

        Section 8.56 of Chapter 156D of the MGL provides that a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he is an officer of the corporation (i) to the same extent as a director and (ii) if he is an officer but not a director, to such further extent as may be provided by the articles of organization, the bylaws, a resolution of the board of directors, or contract except for liability arising out of acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law. Section 8.56 also provides that an officer of a corporation who is not a director is entitled to mandatory indemnification under Section 8.52, and that the officer may apply to a court for indemnification or an advance for expenses, in each case to the same extent to which a director may be entitled to indemnification or advance under those

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provisions. Section 8.57 of the MGL also affords a Massachusetts corporation the power to obtain insurance on behalf of its directors and officers against liabilities incurred by them in these capacities.

        The Massachusetts Corporations' certificates of incorporation limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the MGL.

        The Massachusetts Corporations' by-laws provide that each Massachusetts Corporation shall indemnify any person who is a director, officer or legal representative of the Massachusetts Corporation or who is serving in such capacity at another entity at the request of the Massachusetts Corporation. Each Massachusetts Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Massachusetts Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Massachusetts Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Massachusetts Corporation.

        Oak Pointe Country Club, Inc. and Renaissance Club, Inc. (each a "Michigan Corporation" and, collectively, the "Michigan Corporations")

        Under Section 561 of the Michigan Business Corporation Act (the "MIBCA"), a Michigan corporation may indemnify a person who was or is a party or is threatened to be made a party to a threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, other than an action by or in the right of the corporation, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another enterprise, against expenses, including attorney's fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred in connection therewith if the person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation or its shareholders and, with respect to a criminal action or proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful.

        Under Section 562 of the MIBCA, a Michigan corporation may also provide similar indemnity to such a person for expenses, including attorney's fees, and amounts paid in settlement actually and reasonably incurred by the person in connection with actions or suits by or in the right of the corporation if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the interests of the corporation or its shareholders, except in respect of any claim, issue or matter in which the person has been found liable to the corporation, unless the court determines that the person is fairly and reasonably entitled to indemnification in view of all relevant circumstances, in which case indemnification is limited to reasonable expenses incurred. Under Section 563 of the MIBCA, to the extent that a director or officer has been successful on the merits or otherwise in defending any such action, suit or proceeding referred to above or any claim, issue or matter therein, he or she is entitled to indemnification for expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith and in an action, suit or proceeding brought to enforce the mandatory indemnification provided in such Section 563. Section 567 of the MIBCA also permits a Michigan corporation to purchase and maintain on behalf of a person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another enterprise, insurance against liabilities incurred in such capacities, whether or not the liabilities would be within the indemnification provisions described above.

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        As permitted by Section 209(1)(c) of the MIBCA, the articles of incorporation of each Michigan Corporation include a provision that limits the personal liability of their directors for monetary damages for actions or omissions, except for (i) the amount of a financial benefit received by such director to which he or she is not entitled; (ii) an intentional infliction of harm on the Michigan Corporation or its shareholders; (iii) a violation of Section 551 of the MIBCA or any successor provision to such section; (iv) an intentional violation of criminal law; or (v) to the extent allowed by any future amendment of the MIBCA.

        The by-laws of each Michigan Corporation provide that it shall indemnify any person who is a director, officer or legal representative of the Michigan Corporation or who is serving in such capacity at another entity at the request of the Michigan Corporation against all liability and expenses (including attorneys' fees) reasonably incurred by such person who was or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative. Each Michigan Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification or advancement of expenses is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Michigan Corporation bears the burden of proving that such person is not entitled to indemnification or advancement of expenses. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Michigan Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Michigan Corporation.

        The University Club, Inc. (the "Mississippi Corporation")

        The Mississippi Business Corporation Act (the "MSBCA") empowers a corporation to indemnify an individual who is a party to a proceeding because he is a director against liability incurred in the proceeding if (i) he conducted himself in good faith; (ii) he reasonably believed, in the case of conduct in his official capacity, that his conduct was in the best interests of the corporation, and in all other cases, that his conduct was at least not opposed to the best interests of the corporation; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A corporation may also indemnify an individual who engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation as authorized by Section 79-4-2.02(b)(5) of the MSBCA. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the relevant standard of conduct.

        Unless ordered by a court, under Section 79-4-8.54(a)(3) of the MSBCA, a corporation may not indemnify a director (i) in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct under the MSBCA or (ii) in connection with any proceeding with respect to conduct for which he was adjudged liable on the basis that he received a financial benefit to which he was not entitled, whether or not involving action in his official capacity. The MSBCA further provides that a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding. Also, a corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding because he is a director. The director must deliver to the corporation: (i) a written affirmation of his good faith belief that he has met the relevant standard of conduct described in the MSBCA or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of

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incorporation as authorized by the MSBCA and (ii) his written undertaking to repay any funds advanced if he is not entitled to mandatory indemnification under the MSBCA and it is ultimately determined under the MSBCA that he has not met the relevant standard of conduct described in the MSBCA. The undertaking required must be an unlimited general obligation of the director. It need not be secured and may be accepted without reference to the financial ability of the director to make repayment.

        A corporation may not indemnify a director as described above unless authorized by (i) if there are two or more disinterested directors, by a majority vote of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; (ii) if there are fewer than two disinterested directors, by the vote necessary for action by the board in accordance with the MSBCA, in which authorization directors who do not qualify as disinterested directors may participate or (iii) the shareholders, but shares owned by or voted under the control of a director who at the time does not qualify as a disinterested director may not be voted on the authorization. A corporation may also indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he is an officer to the same extent as for a director.

        The Mississippi Corporation's certificate of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the MSBCA.

        The Mississippi Corporation's by-laws provide that the Mississippi Corporation shall indemnify any person who is a director, officer or legal representative of the Mississippi Corporation or who is serving in such capacity at another entity at the request of the Mississippi Corporation. The Mississippi Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Mississippi Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The Mississippi Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Mississippi Corporation.

        Canyon Gate at Las Vegas, Inc.; ClubCorp—Asia; ClubCorp Asia Investments Inc.; ClubCorp Financial Management Company; ClubCorp International, Inc.; ClubCorp Mexico, Inc.; ClubCorp Publications, Inc.; GP Bear's Best Las Vegas, Inc.; Master Club, Inc. and Society Management, Inc. (each, a "Nevada Corporation" and collectively, the "Nevada Corporations")

        Nevada Revised Statutes ("NRS") 78.138(7) provides that unless the articles of incorporation or an amendment thereto (in each case filed on or after October 1, 2003) provide for greater individual liability, a director or officer is not individually liable to a corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that: (i) the act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii) the breach of those duties involved intentional misconduct, fraud or a knowing violation of law.

        NRS 78.7502 provides that a corporation may indemnify any person for expenses incurred in connection with a threatened, pending or completed action, suit or proceeding in which he or she was, is or is threatened to be made a party by reason of being or having been a director, officer, employee or agent of the corporation or serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, if such person

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(i) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. With respect to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, indemnification may not be made for any claim, issue or matter as to which a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent a court determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. A corporation must indemnify a director, officer, employee or agent against expenses actually and reasonably incurred by him or her in connection with the defense of any action, suit or proceeding to the extent that he or she has been successful on the merits or otherwise.

        NRS 78.751 provides that unless ordered by a court or advanced, discretionary indemnification of a director, officer, employee or agent pursuant to NRS 78.7502 may be made by a corporation only as authorized in the specific case upon a determination that indemnification is proper in the circumstances. Such determination must be made by: (i) the stockholders, (ii) the board of directors by majority vote of a quorum consisting of disinterested directors or (iii) independent legal counsel in a written opinion if (a) a majority vote of a quorum consisting of disinterested directors so orders or (b) a quorum consisting of disinterested directors cannot be obtained. A corporation may, in its articles of incorporation or bylaws or by agreement, provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to indemnification. Unless ordered by a court or advanced, indemnification may not be made to or on behalf of any director or officer if a final adjudication establishes that his or her acts or omissions involved intentional misconduct, fraud or a knowing violation of the law and was material to the cause of action.

        The articles of incorporation of each of the Nevada Corporations, other than Master Club, Inc., are silent with respect to the indemnification of directors, officers, employees and agents.

        The articles of incorporation of Master Club, Inc. provide that, to the fullest extent permitted by the NRS, the personal liability of such Nevada Corporation's directors shall be eliminated and such Nevada Corporation shall indemnify any and all persons whom it shall have power to indemnify from and against any and all expenses, liabilities or other matters referred to in or covered by the NRS, and such indemnification shall not be exclusive of any other rights to which such persons may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and in another capacity while holding such office, and shall continue with respect to former directors, officers, employees and agents and shall inure to the benefit of the heirs, executors and administrators thereof.

        The bylaws of each of: (i) Canyon Gate at Las Vegas, Inc., (ii) ClubCorp—Asia, (iii) ClubCorp Mexico, Inc. and (iv) GP Bear's Best Las Vegas, Inc., each as amended to date, provide that each such Nevada Corporation shall indemnify, to the fullest extent permitted by applicable law, any person who was or is made or is threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she is or was a director or officer of such Nevada Corporation or is or was serving at the request of such Nevada Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, against all expenses reasonably incurred by such person. Each such Nevada Corporation shall be required to indemnify such person in connection with a proceeding commenced by such person only if the commencement of such proceeding was authorized in the specific case by the board of directors. Each such Nevada Corporation shall pay expenses incurred by such person in defending any proceeding in advance of its

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final disposition, upon receipt of an undertaking to repay all amounts advanced if it is ultimately determined that such person is not entitled to indemnification. If a claim for indemnification or advancement of expenses is not paid within thirty days, then such person may file suit to recover the unpaid amount, and if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. Each such Nevada Corporation bears the burden of proving that such person is not entitled to indemnification or advancement of expenses. The right to indemnification is not exclusive of any other rights to which a person may be entitled by statute, agreement, vote of stockholders or disinterested directors or otherwise. The obligation, if any, to indemnify or to advance expenses to any person who was or is serving at the request of each such Nevada Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification or advancement of such expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

        The bylaws of each of: (i) ClubCorp Asia Investments Inc., (ii) ClubCorp Publications, Inc., (iii) Master Club, Inc. and (iv) Society Management, Inc., each as amended to date, provide that any present or former director, officer or employee of such Nevada Corporation sued in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such, or out of any alleged wrongful act by such Nevada Corporation, shall be indemnified for reasonable expenses incurred in the defense of the proceeding if (a) he is successful in whole or in part (including settlement) and (b) the court finds that his conduct merits such indemnity, and the amount of such indemnity shall be such amount as the court determines to be reasonable. The board of directors may authorize such Nevada Corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered against, a present or former director, officer or employee in an action brought by a third party against such person for an act alleged to have been committed by such person in the performance of his duties as a director, officer or employee, or by such Nevada Corporation, or by both, provided that such director, officer or employee was acting in good faith within what he reasonably believed to be in the best interests of such Nevada Corporation or its stockholders. Authorized payments include amounts paid and expenses incurred in settlement. Indemnification is available to the estate, executor, administrator, heirs, legatees or devisees of any present or former director, officer or employee of such Nevada Corporation, but is not available in any action instituted or maintained as the right of such Nevada Corporation by a stockholder thereof.

        The bylaws of ClubCorp Financial Management Company provide that its board of directors shall authorize the indemnification of any present or former director, officer, employee or agent against judgments, penalties, fines, settlements and reasonable expenses actually incurred in connection with a proceeding in which such person was, is or is threatened to be made a named defendant or respondent because such person is or was a director, officer, employee or agent of such Nevada Corporation.

        The bylaws of ClubCorp International, Inc. provide that such Nevada Corporation shall indemnify to the full extent permitted by law, any person made or threatened to be made a party to any action, suit or proceeding by reason of the fact that such person or such person's testator or intestate is or was a director, officer or employee of such Nevada Corporation or serves or served at the request of such Nevada Corporation as a director, officer or employee of another enterprise. Expenses incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by such Nevada Corporation promptly upon receipt of an undertaking to repay such expenses if it is ultimately determined that such person is not entitled to indemnification.

        Athletic Club at the Equitable Center, Inc. (the "New York Corporation")

        Section 722(a) of the New York Business Corporation Law (the "NYBCL") provides that a corporation may indemnify any officer or director, made or threatened to be made, a party to an action or proceeding, other than one by or in the right of the corporation, including an action by or in the

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right of any other corporation or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, because he was a director or officer of the corporation, or served such other corporation or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or in the case of service for any other corporation or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, had no reasonable cause to believe that his conduct was unlawful.

        Section 722(c) of the NYBCL provides that a corporation may indemnify any officer or director made, or threatened to be made, a party to an action by or in the right of the corporation by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of any other corporation of any type or kind, or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys' fees, actually and necessarily incurred by him in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for another corporation or other enterprise, not opposed to, the best interests of the corporation. The corporation may not, however, indemnify any officer or director pursuant to Section 722(c) in respect of (i) a threatened action, or a pending action which is settled or otherwise disposed of, or (ii) any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought or, if no action was brought, any court of competent jurisdiction, determines upon application, that the person is fairly and reasonably entitled to indemnity for such portion of the settlement and expenses as the court deems proper.

        Section 723 of the NYBCL provides that an officer or director who has been successful, on the merits or otherwise, in the defense of a civil or criminal action of the character set forth in Section 722 is entitled to indemnification as permitted in such section. Section 724 of the NYBCL permits a court to award the indemnification required by Section 722.

        The New York Corporation's certificate of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the NYBCL.

        The New York Corporation's by-laws provide that the New York Corporation shall indemnify any person who is a director, officer or legal representative of the New York Corporation or who is serving in such capacity at another entity at the request of the New York Corporation. The New York Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the New York Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The New York Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the New York Corporation.

        Capital City Club of Raleigh, Inc.; Piedmont Club, Inc. and UNC Alumni Club Management, Inc. (each a "North Carolina Corporation" and, collectively, the "North Carolina Corporations")

        Section 55-8-51 of the North Carolina Business Corporation Act (the "NCBCA") provides that a corporation may indemnify an individual made a party to a proceeding because he is or was a director

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against liability incurred in the proceeding if: (i) he conducted himself in good faith; (ii) he reasonably believed (1) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests and (2) in all other cases, that his conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A corporation may not indemnify a director (1) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (2) in connection with any proceeding charging improper benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him.

        Section 55-8-57 of the NCBCA permits a corporation, in its articles of incorporation or bylaws or by contract or resolution, to indemnify, or agree to indemnify, its directors, officers, employees or agents against liability and expenses in any proceeding (including proceedings brought by or on behalf of the corporation) arising out of their status as such or their activities in such capacities, except for any liabilities or expenses incurred on account of activities that were, at the time taken, known or believed by the person to be clearly in conflict with the best interests of the corporation. Sections 55-8-52 and 55-8-56 of the NCBCA require a corporation, unless its articles of incorporation provide otherwise, to indemnify a director or officer who has been wholly successful, on the merits or otherwise, in the defense of any proceeding to which such director or officer was made a party because he was or is a director or officer of the corporation against reasonable expenses actually incurred by the director or officer in connection with the proceeding. Section 55-8-57 of the NCBCA authorizes a corporation to purchase and maintain insurance on behalf of an individual who was or is a director, officer, employee or agent of the corporation against certain liabilities incurred by such a person, whether or not the corporation is otherwise authorized by the NCBCA to indemnify that person.

        The North Carolina Corporations' certificates of incorporation each limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the NCBCA.

        The North Carolina Corporations' by-laws provide that each North Carolina Corporation shall indemnify any person who is a director, officer or legal representative of the North Carolina Corporation or who is serving in such capacity at another entity at the request of the North Carolina Corporation. Each North Carolina Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the North Carolina Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of shareholders or disinterested directors or otherwise. Each North Carolina Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the North Carolina Corporation.

        Akron Management Corp.; Dayton Racquet Club, Inc.; Quail Hollow Management, Inc.; Shoreby Club Management, Inc.; Silver Lake Management Corp. and The Club at Society Center, Inc. (each an "Ohio Corporation" and, collectively, the "Ohio Corporations")

        Pursuant to Section 1701.13(E) of the Ohio Revised Code (the "ORC"), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts

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paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding (i) if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe such conduct was unlawful. In actions brought by or in the right of the corporation, a corporation may indemnify such person against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of (i) any claim, issue or matter as to which that person shall have been adjudged to be liable for negligence or misconduct in performance of his duty to the corporation unless, and only to the extent that, the court of common pleas or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person in fairly and reasonably entitled to indemnification for such expenses which the court of common pleas or such other court shall deem proper or (ii) any action or suit in which the only liability asserted against a director is pursuant to section 1701.95 of the ORC. An Ohio corporation is required to indemnify a director or officer against expenses actually and reasonably incurred to the extent that the director or officer is successful in defending a lawsuit brought against him or her by reason of the fact that the director or officer is or was a director or officer of the corporation.

        The indemnification provided for in Section 1701.13(E) of the ORC is not exclusive of any other rights of indemnification to which those seeking indemnification may be entitled, and a corporation may purchase and maintain insurance against liabilities asserted against any former or current, director, officer, employee or agent of the corporation, or a person who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether or not the power to indemnify is provided by the statute.

        The Ohio Corporations' articles of incorporation each limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the ORC.

        The Ohio Corporations' by-laws provide that each Ohio Corporation shall indemnify any person who is or was a director, officer or legal representative of the Ohio Corporation or who is or was serving in such capacity at another entity at the request of the Ohio Corporation against all liability and loss suffered and expenses reasonably incurred. Each Ohio Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Ohio Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification in such by-laws is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Ohio Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Ohio Corporation or brought to enforce such person's right to indemnification or advancement of expenses.

        Diamond Run Club, Inc.; Pyramid Club Management, Inc.; Rivers Club, Inc. and Treesdale Country Club, Inc. (each a "Pennsylvania Corporation" and, collectively, the "Pennsylvania Corporations")

        Pursuant to Sections 1741-1743 of the Pennsylvania Business Corporation Law (the "PABCL"), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the

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request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding (i) if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe such conduct was unlawful. In actions brought by or in the right of the corporation, a corporation may indemnify such person against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable for negligence or misconduct in performance of his duty to the corporation unless, and only to the extent that, the court of common pleas or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person in fairly and reasonably entitled to indemnification for such expenses which the court of common pleas or such other court shall deem proper. A Pennsylvania corporation is required to indemnify a director or officer against expenses actually and reasonably incurred to the extent that the director or officer is successful in defending a lawsuit brought against him or her by reason of the fact that the director or officer is or was a director or officer of the corporation.

        Section 1746 of the PABCL provides that the foregoing provisions shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled under, among other things, any by-law provision, provided that no indemnification may be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness.

        The Pennsylvania Corporations' certificates of incorporation each limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the PABCL.

        The Pennsylvania Corporations' by-laws, except for Diamond Run Club, Inc., provide that each Pennsylvania Corporation shall indemnify any person who is a director, officer or legal representative of the Pennsylvania Corporation or who is serving in such capacity at another entity at the request of the Pennsylvania Corporation. Each Pennsylvania Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Pennsylvania Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Pennsylvania Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Pennsylvania Corporation.

        The bylaws of Diamond Run Club, Inc. provide that any present or former director, officer or employee of the Pennsylvania Corporation sued in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such, or out of any alleged wrongful act by the Pennsylvania Corporation, shall be indemnified for reasonable expenses incurred in the defense of the proceeding if (a) he is successful in whole or in part (including settlement) and (b) the court finds that his conduct merits such indemnity, and the amount of such indemnity shall be such amount as the court determines to be reasonable. The board of directors may authorize the Pennsylvania Corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered against, a present or former director, officer or employee in an action brought by a third party against such person for an

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act alleged to have been committed by such person in the performance of his duties as a director, officer or employee, or by the Pennsylvania Corporation, or by both, provided that the board determines that such director, officer or employee was acting in good faith within what he reasonably believed to be in the best interests of the Pennsylvania Corporation or its stockholders. Authorized payments include amounts paid and expenses incurred in settlement. Indemnification is available to the estate, executor, administrator, heirs, legatees or devisees of any present or former director, officer or employee of the Pennsylvania Corporation, but is not available in any action instituted or maintained as the right of the Pennsylvania Corporation by a stockholder thereof.

        Columbia Capital City Club Corp.; Harbour Club of Charleston, Inc.; Indigo Run Asset Corp.; Manager for CCHH, Inc.; The Commerce Club, Inc.; The Manager of the Owner's Club, Inc. and Woodside Plantation Country Club, Inc. (each a "South Carolina Corporation" and, collectively, the "South Carolina Corporations")

        The South Carolina Business Corporation Act of 1988 (the "SCBCA") provides that a corporation may indemnify an individual made a party to a proceeding because he is or was a director against liability incurred in the proceeding if: (i) he conducted himself in good faith; (ii) he reasonably believed (1) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests and (2) in all other cases, that his conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. Under the SCBCA, a South Carolina corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of the final disposition of the proceeding if: (i) the director furnishes the corporation a written affirmation of his good faith belief that he has met the standard of conduct described in the preceding sentence; and (ii) the director furnishes the corporation an undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet the standard of conduct; and (iii) a determination is made that the facts then known to those making the determination would not preclude indemnification. Unless a corporation's articles of incorporation provide otherwise, the corporation may indemnify and advance expenses to an officer, employee or agent of the corporation who is not a director to the same extent as to a director. A corporation may not indemnify a director (i) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (ii) in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Unless limited by its articles of incorporation, a corporation must indemnify a director or officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director or officer of the corporation against reasonable expenses incurred by him in connection with the proceeding. A corporation may also purchase and maintain on behalf of a director or officer insurance against liabilities incurred in such capacities, whether or not the corporation would have the power to indemnify him against the same liability under the statute.

        The South Carolina Corporations' articles of incorporation, except for The Manager of the Owner's Club, Inc., each limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the SCBCA.

        The South Carolina Corporations' by-laws, except for Harbour Club of Charleston, Inc., provide that each South Carolina Corporation shall indemnify any person who is a director, officer or legal representative of the South Carolina Corporation or who is serving in such capacity at another entity at the request of the South Carolina Corporation. Each South Carolina Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the South

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Carolina Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each South Carolina Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the South Carolina Corporation.

        Harbour Club of Charleston, Inc.'s by-laws provide that any present or former director, officer or employee of the South Carolina Corporation sued in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such, or out of any alleged wrongful act by the South Carolina Corporation, shall be indemnified for reasonable expenses incurred in the defense of the proceeding if (a) he is successful in whole or in part (including settlement) and (b) the court finds that his conduct merits such indemnity, and the amount of such indemnity shall be such amount as the court determines to be reasonable. The board of directors may authorize the South Carolina Corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered against, a present or former director, officer or employee in an action brought by a third party against such person for an act alleged to have been committed by such person in the performance of his duties as a director, officer or employee, or by the South Carolina Corporation, or by both, provided that such director, officer or employee was acting in good faith within what he reasonably believed to be in the best interests of the South Carolina Corporation or its stockholders. Authorized payments include amounts paid and expenses incurred in settlement. Indemnification is available to the estate, executor, administrator, heirs, legatees or devisees of any present or former director, officer or employee of the South Carolina Corporation, but is not available in any action instituted or maintained as the right of the South Carolina Corporation by a stockholder thereof.

        Piedmont Golfers' Club LLC (the "South Carolina LLC")

        Under Section 33-44-403 of the South Carolina Limited Liability Company Act, a limited liability company shall reimburse a member or manager for payments made and indemnify a member or manager for liabilities incurred by the member or manager in the ordinary course of the business of the company or for the preservation of its business or property.

        Pursuant to the South Carolina LLC's LLC Agreement, its member, officers, directors, employees or agents or any employee, representative, agent or affiliate of its member shall be indemnified, and shall not be liable to the South Carolina LLC or any other party to the LLC Agreement, for any loss, damage or claim incurred by reason of any act or omission, except to the extent such liability was outside of such person's authority or due to bad faith, gross negligence or willful misconduct. The South Carolina LLC shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification.

        The Owner's Club at Hilton Head, L.P. (the "South Carolina Limited Partnership")

        The Uniform Partnership Act provides that a partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business or for the preservation of its business or property.

        The South Carolina Limited Partnership's Limited Partnership Agreement states that the general partner shall have no liability to the South Carolina Limited Partnership or its individual partners for mistakes, errors or omissions made in good faith and within the scope of authority conferred upon them by the Limited Partnership Agreement, except for willful misconduct, fraud or gross negligence. Furthermore, the South Carolina Limited Partnership shall indemnify the General Partner for liability in connection with such actions or omissions.

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        Club Le Conte, Inc.; Memphis City Club, Inc. and Nashville Club Management, Inc. (each a "Tennessee Corporation" and, collectively, the "Tennessee Corporations")

        The Tennessee Business Corporation Act (the "TNBCA") provides that a corporation may indemnify an individual made a party to a proceeding because he is or was a director against liability incurred in the proceeding if: (i) he conducted himself in good faith; and (ii) he reasonably believed (1) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests; and (2) in all other cases, that his conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. Under the TNBCA, a corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of the final disposition of the proceeding if: (i) the director furnishes the corporation a written affirmation of his good faith belief that he has met the standard of conduct described in the preceding sentence; (ii) the director furnishes the corporation an undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet the standard of conduct; and (iii) a determination is made that the facts then known to those making the determination would not preclude indemnification. Unless a corporation's articles of incorporation provide otherwise, the corporation may indemnify and advance expenses to an officer, employee or agent of the corporation who is not a director to the same extent as to a director. A corporation may not indemnify a director (i) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (ii) in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Unless limited by its articles of incorporation, a corporation must indemnify a director or officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director or officer of the corporation against reasonable expenses incurred by him in connection with the proceeding. A corporation may also purchase and maintain on behalf of a director or officer insurance against liabilities incurred in such capacities, whether or not the corporation would have the power to indemnify him against the same liability under the statute.

        The Tennessee Corporations' certificates of incorporation each limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the TNBCA.

        The Tennessee Corporations' by-laws provide that each Tennessee Corporation shall indemnify any person who is a director, officer or legal representative of the Tennessee Corporation or who is serving in such capacity at another entity at the request of the Tennessee Corporation. Each Tennessee Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Tennessee Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Tennessee Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Tennessee Corporation.

        Bluegrass Club, LLC (the "Tennessee LLC")

        Section 48-249-115(b) of the Tennessee Revised Limited Liability Company Act (the "TRLLCA") provides that a manager-managed LLC may indemnify an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding, because such individual is or was a manager, officer, employee or agent or an individual who, while a manager, officer, employee or agent, is or was

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serving at the LLC's request as a director, manager, officer, partner, trustee, employee or agent of an employee benefit plan or any other foreign or domestic entity, against judgment, settlement, penalty, fine, including an excise tax assessed with respect to an employee benefit plan, or reasonable expenses incurred with respect to a proceeding, if the individual acted in good faith and he reasonably believed (i) in the case of conduct in his official capacity with the LLC that his conduct was in its best interests and (ii) in all other cases, that his conduct was at least not opposed to its best interests. In the case of any criminal proceeding, he must have had no reasonable cause to believe his conduct was unlawful. However, an LLC may not indemnify such a person if (i) in connection with a proceeding by or in the right of the LLC in which the responsible person was adjudged liable to the LLC or (ii) in connection with any other proceeding charging improper personal benefit to such person, whether or not involving action in such person's official capacity, in which such person was adjudged liable on the basis that personal benefit was improperly received by such person.

        Section 48-249-115(c) of the TRLLCA provides that an LLC shall indemnify a manager, officer, employee or agent or an individual who, while a manager, officer, employee or agent, is or was serving at the LLC's request as a director, manager, officer, partner, trustee, employee or agent of an employee benefit plan or any other foreign or domestic entity, who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party, because the person is or was held such a position, against reasonable expenses (including attorneys' fees) incurred by the person in connection with the proceeding.

        Pursuant to the Tennessee LLC's LLC Agreement, its member, officers, directors, employees or agents or any employee, representative, agent or affiliate of its member shall be indemnified, and shall not be liable to the Tennessee LLC or any other party to the LLC Agreement, for any loss, damage or claim incurred by reason of any act or omission, except to the extent such liability was outside of such person's authority or due to bad faith, gross negligence or willful misconduct. The Tennessee LLC shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification.

        April Sound Management Corp.; Barton Creek Resort & Clubs, Inc.; Bay Oaks Country Club, Inc.; Brookhaven Country Club, Inc.; Dallas Tower Club, Inc.; Fair Oaks Club Corp.; Fort Bend Acquisition Corp.; GCC Asset Management, Inc.; Greenspoint Club, Inc.; Hackberry Creek Country Club, Inc.; Hearthstone Country Club, Inc.; Hill Country Golf, Inc.; Hills II of Lakeway, Inc.; Houston City Club, Inc.; Irving Club Acquisition Corp.; Kingwood Country Club, Inc.; La Cima Club, Inc.; Lakeway Clubs, Inc.; Memorial Stadium Club Management Corp.; Oakmont Management Corp.; Richardson Country Club Corp.; Shady Valley Management Corp.; Stonebriar Management Corp.; The Club at Cimarron, Inc.; The Downtown Club, Inc.; The Plaza Club of San Antonio, Inc.; Timarron Golf Club, Inc.; Tower Club of Dallas, Inc.; Walnut Creek Management Corporation; West Park Club, Inc.; Westlake City Club, Inc.; Wildflower Country Club, Inc. and Willow Creek Management, Inc. (each a "Texas Corporation" and, collectively, the "Texas Corporations"); and ClubCorp Golf of Texas, L.P. (the "Texas Limited Partnership")

        Section 2.101(16) of the Texas Business Organizations Code ("TBOC") provides that, except as otherwise provided by the TBOC, the powers of a domestic entity include the power to indemnify and maintain liability insurance for managerial officials, owners, members, employees, and agents of the entity or the entity's affiliate.

        Section 8.051 of the TBOC states as follows:

        (a)   An enterprise shall indemnify a governing person, former governing person, or delegate against reasonable expenses actually incurred by the person in connection with a proceeding in which the person is a respondent because the person is or was a governing person or delegate if the person is wholly successful, on the merits or otherwise, in the defense of the proceeding.

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        (b)   A court that determines, in a suit for indemnification, that a governing person, former governing person, or delegate is entitled to indemnification under this section shall order indemnification and award to the person the expenses incurred in securing the indemnification.

        Section 8.052 of the TBOC states as follows:

        (a)   On application of a governing person, former governing person, or delegate and after notice is provided as required by the court, a court may order an enterprise to indemnify the person to the extent the court determines that the person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances.

        (b)   This section applies without regard to whether the governing person, former governing person, or delegate applying to the court satisfies the requirements of Section 8.101 or has been found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person's official capacity.

        (c)   The indemnification ordered by the court under this section is limited to reasonable expenses if the governing person, former governing person, or delegate is found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person's official capacity.

        Section 8.101 of the TBOC states as follows:

        (a)   An enterprise may indemnify a governing person, former governing person, or delegate who was, is, or is threatened to be made a respondent in a proceeding to the extent permitted by Section 8.102 if it is determined in accordance with Section 8.103 that: (1) the person: (A) acted in good faith; (B) reasonably believed: (i) in the case of conduct in the person's official capacity, that the person's conduct was in the enterprise's best interests; and (ii) in any other case, that the person's conduct was not opposed to the enterprise's best interests; and (C) in the case of a criminal proceeding, did not have a reasonable cause to believe the person's conduct was unlawful; (2) with respect to expenses, the amount of expenses other than a judgment is reasonable; and (3) indemnification should be paid.

        (b)   Action taken or omitted by a governing person or delegate with respect to an employee benefit plan in the performance of the person's duties for a purpose reasonably believed by the person to be in the interest of the participants and beneficiaries of the plan is for a purpose that is not opposed to the best interests of the enterprise.

        (c)   Action taken or omitted by a delegate to another enterprise for a purpose reasonably believed by the delegate to be in the interest of the other enterprise or its owners or members is for a purpose that is not opposed to the best interests of the enterprise.

        (d)   A person does not fail to meet the standard under Subsection (a)(1) solely because of the termination of a proceeding by: (1) judgment; (2) order; (3) settlement; (4) conviction; or (5) a plea of nolo contendere or its equivalent.

        Section 8.102 of the TBOC states as follows:

        (a)   Subject to Subsection (b), an enterprise may indemnify a governing person, former governing person, or delegate against: (1) a judgment; and (2) expenses, other than a judgment, that are reasonable and actually incurred by the person in connection with a proceeding.

        (b)   Indemnification under this subchapter of a person who is found liable to the enterprise or is found liable because the person improperly received a personal benefit: (1) is limited to reasonable expenses actually incurred by the person in connection with the proceeding; (2) does not include a judgment, a penalty, a fine, and an excise or similar tax, including an excise tax assessed against the person with respect to an employee benefit plan; and (3) may not be made in relation to a proceeding

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in which the person has been found liable for: (A) willful or intentional misconduct in the performance of the person's duty to the enterprise; (B) breach of the person's duty of loyalty owed to the enterprise; or (C) an act or omission not committed in good faith that constitutes a breach of a duty owed by the person to the enterprise.

        (c)   A governing person, former governing person, or delegate is considered to have been found liable in relation to a claim, issue, or matter only if the liability is established by an order, including a judgment or decree of a court, and all appeals of the order are exhausted or foreclosed by law.

        The certificate of formation, as amended, of each Texas Corporation, other than Hills II of Lakeway, Inc., provide that, to the fullest extent permitted by Texas law, a director of the corporation shall not be liable to the corporation or its shareholders for any act or omission in such director's capacity as a director.

        Hills II of Lakeway, Inc.'s Articles of Incorporation provide that each person who is or was a director, officer, agent or employee of the corporation, and each person who serves or served at the corporation's request as a director, officer, agent, employee, partner or trustee of another entity, shall be indemnified by the corporation against any expenses (including attorney's fees), amounts paid in settlement, judgments and fines incurred by such person in connection with any action, suit or proceeding to which such person may be a party by reason of such person's position with the corporation or service on behalf of the corporation to the full extent (i) provided under any bylaw or agreement of the corporation or (ii) otherwise permitted by law; provided, however, that such indemnification shall not be afforded if the corporation, in its discretion, finds such person at fault in such settlement, judgment, or fine.

        The bylaws of each Texas Corporation provide as follows:

        (a)   The corporation shall indemnify, to the fullest extent permitted by applicable law, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such person. Notwithstanding the preceding provision, except as described in paragraph (c) below, the corporation is required to indemnify such a person in connection with a proceeding commenced by such person only if the commencement of such proceeding by such person was authorized in the specific case by the board of directors of the corporation.

        (b)   The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys' fees) incurred by a person described in the preceding paragraph (a) in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an affirmation and an undertaking by the covered person to repay the amount paid or reimbursed if the final determination is that the person is not entitled to indemnification.

        (c)   If a claim for indemnification or advancement of expenses under the bylaws is not paid in full within thirty days after a written claim therefor by the covered person has been received by the corporation, then such person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the corporation bears the burden of proving that such person is not entitled to the requested indemnification or advancement of expenses under applicable law.

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        (d)   The right to indemnification conferred by the bylaws is not exclusive of any other rights which a covered person may have under any statute, provision of the certificate of formation, agreement, vote of shareholders or disinterested directors or otherwise.

        (e)   The corporation's obligation, if any, to indemnify or to advance expenses to any covered person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such covered person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

        Pursuant to the Texas Limited Partnership's limited partnership agreement (the "Texas Limited Partnership Agreement"), to the fullest extent permitted by applicable law, the Texas Limited Partnership's general partner, limited partner, employees or agents or any employee, representative, manager, agent or affiliate of its general partner or limited partner are not liable to the Texas Limited Partnership or to any other party to the Texas Limited Partnership Agreement for, and are entitled to indemnification from, any loss, damage or claim incurred by such person by reason of any act or omission performed or omitted by such person in good faith on behalf of the Texas Limited Partnership and in a manner reasonably believed to be within the scope of the authority conferred on such person by the Texas Limited Partnership Agreement, except that no such person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by reason of such person's gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any such indemnity shall be provided out of and to the extent of the assets of the Texas Limited Partnership only, and its general partner and limited partner.

        The Texas Limited Partnership Agreement provides that, to the fullest extent permitted by applicable law, expenses (including legal fees) incurred by the Texas Limited Partnership's general partner, limited partner, employees or agents or any employee, representative, manager, agent or affiliate of its general partner or limited partner in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Texas Limited Partnership prior to the final disposition upon receipt by the Texas Limited Partnership of an undertaking by or on behalf of the covered person to repay such amount if it shall be determined that the such person is not entitled to be indemnified as authorized in the Texas Limited Partnership Agreement.

        Greenbrier Country Club, Inc.; Operations Company for Homestead, Inc.; River Creek Country Club, Inc.; Stonehenge Club, Inc.; Tower City Club of Virginia, Inc. and Town Point Club, Inc. (each a "Virginia Corporation" and, collectively, the "Virginia Corporations")

        The Virginia Stock Corporation Act ("VASCA") empowers a corporation to indemnify an individual made a party to a proceeding because he is or was a director against liability incurred in the proceeding if: (i) he conducted himself in good faith; (ii) he believed (1) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests and (2) in all other cases, that his conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A corporation may not indemnify a director (i) in connection with a proceeding by or in the right of the corporation except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard in the preceding sentence; or (ii) in connection with any other proceeding charging improper personal benefit to the director, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Unless limited by its articles of incorporation, a corporation must indemnify a director who entirely prevails in the defense of any proceeding to which he was a party because he is or was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding. Under the VASCA, a corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of the final disposition of the

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proceeding if: (i) the director furnishes the corporation a written affirmation of his good faith belief that he has met the standard of conduct described in Section 13.1-697 of the VASCA; and (ii) the director furnishes the corporation an undertaking, executed personally or on his behalf, to repay the advance if the director is not entitled to mandatory indemnification under Section 13.1-698 of the VASCA and it is ultimately determined that he did not meet the relevant standard of conduct under the VASCA. Unless a corporation's articles of incorporation provide otherwise, the corporation may indemnify and advance expenses to an officer of the corporation to the same extent as to a director, and an officer is entitled to mandatory indemnification to the same extent as a director. A corporation may also purchase and maintain on behalf of a director or officer insurance against liabilities incurred in such capacities, whether or not the corporation would have the power to indemnify him against the same liability under the VASCA.

        The Virginia Corporations' articles of incorporation each limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the VASCA.

        The Virginia Corporations' by-laws provide that each Virginia Corporation shall indemnify, to the fullest extent permitted by applicable law, any person who is a director, officer or legal representative of a director or officer of the Virginia Corporation or who is serving in such capacity at another entity at the request of the Virginia Corporation. Each Virginia Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unpaid amount, and the Virginia Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Each Virginia Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Virginia Corporation.

        Columbia Tower Club, Inc. (the "Washington Corporation")

        The Washington Business Corporation Act (the "WABCA") empowers a corporation to indemnify an individual made a party to a proceeding because he is or was a director against liability incurred in the proceeding if: (i) he conducted himself in good faith; and (ii) he reasonably believed (1) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests and (2) in all other cases, that his conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A corporation may not indemnify a director (i) in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding; or (ii) in connection with any other proceeding charging improper personal benefit to the director, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Unless limited by its articles of incorporation, a corporation must indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding. Under the WABCA, a corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of the final disposition of the proceeding if: (i) the director furnishes the corporation a written affirmation of his good faith belief that he has met the standard of conduct described in Section 23B.08.510 of the WABCA; and (ii) the director furnishes the corporation a written undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet the relevant standard of conduct. Unless a corporation's articles of incorporation provide otherwise, the corporation may indemnify and advance expenses to an officer,

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employee or agent of the corporation to the same extent as to a director. A corporation may also purchase and maintain on behalf of a director, officer, employee or agent of the corporation insurance against liabilities incurred in such capacities, whether or not the corporation would have the power to indemnify him against the same liability under the WABCA.

        The Washington Corporation's amended and restated articles of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the WABCA.

        The Washington Corporation's by-laws provide that the Washington Corporation shall indemnify and hold harmless against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Washington Corporation or, while a director or officer of the corporation, is or was serving in such capacity at another entity at the request of the Washington Corporation. The Washington Corporation shall advance expenses incurred by any such person in defending any such action, suit or proceeding in advance of its final disposition, provided that such person undertakes to repay all amounts advanced if it is ultimately determined that such person is not entitled to indemnification. If a claim for indemnification or advancement of expenses is not paid within thirty days after a written demand is received by the Washington Corporation, then such person may file suit for the unpaid amount of such claim. The Washington Corporation bears the burden of proving that such person is not entitled to indemnification or advancement of expenses. The right to indemnification and advancement of expenses is not exclusive of any other rights to which a person may be entitled by law, the Washington Corporation's organizational documents, agreement, vote of stockholders or disinterested directors or otherwise. The Washington Corporation shall be required to indemnify such person in connection with an action, suit or proceeding commenced by such person only if the action, suit or proceeding commenced by such person was specifically authorized by the board of directors of the Washington Corporation.

        City Club of Washington, Inc. (the "D.C. Corporation")

        The District of Columbia Business Corporation Act (the "DCBCA") provides that a corporation organized under the laws of the District of Columbia has the right to indemnify any and all directors or officers or former directors or officers or any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor against expenses actually and necessarily incurred by them in connection with the defense of any action, suit, or proceeding in which they, or any of them, are made parties, or a party, by reason of being or having been directors or officers or a director or officer of the corporation or of such other corporation, except in relation to matters as to which any such director or officer or former director or person shall be adjudged in such action, suit, or proceeding to be liable for negligence or misconduct in the performance of duty. Such indemnification is not exclusive of any other rights to which those indemnified may be untitled under any bylaw, agreement, vote of stockholders or otherwise.

        The D.C. Corporation's articles of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the DCBCA.

        The D.C. Corporation's by-laws provide that the D.C. Corporation shall indemnify, to the fullest extent permitted by applicable law, any person who is a director, officer or legal representative of a director or officer of the D.C. Corporation or who is serving in such capacity at another entity at the request of the D.C. Corporation. The D.C. Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they

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are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unpaid amount, and the D.C. Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The D.C. Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the D.C. Corporation.

        Glendale Management Corp. and Glendale Racquet Club, Inc. (each a "Wisconsin Corporation" and, collectively, the "Wisconsin Corporations")

        Under Section 180.0851(1) of the Wisconsin Business Corporation Law (the "WBCL"), a corporation shall indemnify a director or officer, to the extent that he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding if the director or officer was a party because he or she is a director or officer of the corporation. Section 180.0851(2) provides that, to the extent a director or officer has not been successful on the merits or otherwise in the defense of a proceeding, the corporation shall indemnify the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of the corporation, unless liability was incurred because the director or officer breached or failed to perform a duty that he or she owes to the corporation and the breach or failure to perform constitutes any of the following: (i) a willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation of the criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful; (iii) a transaction from which the director or officer derived an improper personal profit; or (iv) willful misconduct.

        Section 180.0828 of the WBCL provides that, with certain exceptions, a director is not liable to a corporation, its shareholders, or any person asserting rights on behalf of the corporation or its shareholders, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a director, unless the person asserting liability proves that the breach or failure to perform constitutes any of the four exceptions to mandatory indemnification under Section 180.0851(2) referred to above.

        Under Section 180.0833 of the WBCL, directors of a Wisconsin corporation against whom claims are asserted with respect to the declaration of improper dividends or distributions to shareholders which they approved are entitled to contribution from other directors who approved such actions and from shareholders who knowingly accepted an improper dividend or distribution, as provided therein.

        Section 180.0858(1) of the WBCL provides that, subject to certain limitations, the mandatory indemnification provisions do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under a Wisconsin corporation's articles of incorporation, by-laws, any written agreement between the director or officer and the corporation, or a resolution of the board of directors or shareholders.

        Section 180.0859 of the WBCL provides that it is the public policy of the State of Wisconsin to require or permit indemnification, allowance of expenses and insurance to the extent required or permitted under Sections 180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with a proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities, securities brokers or dealers, or investment companies or investment advisors.

        The Wisconsin Corporations' certificates of incorporation each limit the personal liability of their directors for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation is not permitted under the WBCL.

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        The Wisconsin Corporations' by-laws provide that each Wisconsin Corporation shall indemnify any person who is or was a director, officer or legal representative of the Wisconsin Corporation or who is serving in such capacity at another entity at the request of the Wisconsin Corporation. Each Wisconsin Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Wisconsin Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled or acquire under any statute, provision of the certificate of incorporation, the by law, agreements, vote of stockholders or disinterested directors or otherwise. Each Wisconsin Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Wisconsin Corporation.

        Indemnification Agreements with Directors and Officers of ClubCorp Holdings, Inc.

        Holdings has entered into indemnification agreements with its directors and officers, some of which also serve as directors and officers of the co-registrants at Holdings' request. The agreements provide that Holdings shall indemnify its directors and officers against all liability and expenses (including attorneys' fees) stemming from their service as directors, officers, employees or agents of Holdings or their service at other entities at Holdings' request. Holdings shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, the courts, articles of incorporation, bylaws, other agreements or otherwise. Holdings shall be required to indemnify such person in connection with a proceeding voluntarily commenced by the person only if the proceeding was authorized or consented to by the board of directors of Holdings.

        The agreements also provide that Holdings shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance for its directors and officers. Holdings maintains insurance on behalf of its directors and officers and the directors and officers of its direct and indirect subsidiaries, including the co-registrants, insuring them against any liability asserted against them in their capacities as directors or officers or arising out of such status.

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Item 21.    Exhibits and Financial Statement Schedules.

        (a)   Exhibits.

        See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this prospectus, which Exhibit Index is incorporated herein by reference.

        (b)   Financial Statement Schedules.

        Valuation and Qualifying Accounts disclosures have been incorporated in the notes to consolidated and combined financial statements.

Item 22.    Undertakings.

        (a)   The undersigned registrants hereby undertake:

            (1)   to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

                (i)  to include any prospectus required by Section 10(a)(3) of the Securities Act;

               (ii)  to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and

              (iii)  to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

            (2)   that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;

            (3)   to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;

            (4)   that, for the purpose of determining liability under the Securities Act to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and

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            (5)   that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrants undertake that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

                (i)  Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

               (ii)  Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

              (iii)  The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

              (iv)  Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

        (b)   The undersigned registrants hereby undertake to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b) 11 or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.

        (c)   The undersigned registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP CLUB OPERATIONS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Chief Financial Officer and Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President, Chief Executive Officer and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ MARTIN J. NEWBURGER
 Martin J. Newburger
 
Director

/s/ ERIC C. RESNICK
 Eric C. Resnick
 
Director

/s/ STEVEN S. SIEGEL
 Steven S. Siegel
 
Director

/s/ MICHAEL S. SHANNON
 Michael S. Shannon
 
Chairman of the Board

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  191 ATHLETIC CLUB MANAGEMENT COMPANY, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  191 CC OPERATING CO., LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  AKRON MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  ALISO VIEJO GOLF CLUB JOINT VENTURE

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  ANTHEM GOLF, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  APRIL SOUND MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  ASPEN GLEN GOLF CLUB MANAGEMENT COMPANY

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  ATHLETIC CLUB AT THE EQUITABLE CENTER, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  AZ CLUB, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  BARTON CREEK RESORT & CLUBS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  BAY OAKS COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  BLUEGRASS CLUB, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  BROOKHAVEN COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CANYON GATE AT LAS VEGAS, INC.

 

By:

  

/s/ ERIC L. AFFELDT

      Name:   Eric L. Affeldt

      Title:   President, Treasurer and Secretary


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President, Treasurer and Secretary (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)

/s/ ERIC C. RESNICK
 Eric C. Resnick
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CAPITAL CITY CLUB OF MONTGOMERY, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CAPITAL CITY CLUB OF RALEIGH, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CCA GOLF COURSE HOLDCO, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CCA MEZZANINE HOLDCO, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CENTRE CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CITRUS CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CITY CLUB OF WASHINGTON, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUB AT BOSTON COLLEGE, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUB LE CONTE, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP—ASIA

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP AIRWAYS GOLF, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP ALISO VIEJO HOLDING CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP ASIA INVESTMENTS INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP AVEN HOLDINGS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP BRAEMAR COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP BUNKER HILL CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP BUYING SERVICES, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP CANYON CREST COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP CENTER CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP COTO PROPERTY HOLDINGS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP CROW CANYON MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP DESERT FALLS COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP FINANCIAL MANAGEMENT COMPANY

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GCL CORPORATION

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GEN PAR OF TEXAS, L.L.C.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GOLF OF CALIFORNIA, L.L.C.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GOLF OF FLORIDA, L.L.C.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GOLF OF GEORGIA, L.P.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GOLF OF NORTH CAROLINA, L.L.C.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GOLF OF TEXAS, L.P.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GRANITE BAY MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP GRAPHICS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP HAMLET, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP INTERNATIONAL, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP IW GOLF CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP MANAGEMENT COMPANY FOR STONE CREEK, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP MEXICO, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP MEZZANINE BORROWER, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP MISSION HILLS COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP MORTGAGE BORROWER, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP PORTER VALLEY COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP PUBLICATIONS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP SAN JOSE CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP SHADOW RIDGE GOLF CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP SPRING VALLEY LAKE COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP SYMPHONY TOWERS CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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 SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP TEAL BEND GOLF CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP TTC, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP TURKEY CREEK GOLF CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP USA, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP WILLOW CREEK, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  CLUBCORP WIND WATCH, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  COLUMBIA CAPITAL CITY CLUB CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  COLUMBIA TOWER CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-106

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  COUNTRYSIDE COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-107

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    CURRITUCK GOLF, LLC

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-108

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    DALLAS TOWER CLUB, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-109

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    DAYTON RACQUET CLUB, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    DEBARY MANAGEMENT CORP.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    DIAMANTE' GOLF CLUB MANAGEMENT, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  DIAMANTE' GOLF CLUB PARTNERS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  DIAMOND RUN CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  EMPIRE RANCH, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  FAIR OAKS CLUB CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  FARMS OF NEW KENT MANAGEMENT, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  FFFC GOLF ACQUISITIONS, L.L.C.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  FIRST CITY CLUB MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  FORT BEND ACQUISITION CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  GCC ASSET MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  GLENDALE MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  GLENDALE RACQUET CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  GP BEAR'S BEST ATLANTA, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  GP BEAR'S BEST LAS VEGAS, INC.

 

By:

  

/s/ ERIC L. AFFELDT

      Name:   Eric L. Affeldt

      Title:   President, Treasurer and Secretary

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President, Treasurer and Secretary (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)

/s/ ERIC C. RESNICK
 Eric C. Resnick
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  GRANCH GOLF CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  GREENBRIER COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    GREENSPOINT CLUB, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    HACKBERRY CREEK COUNTRY CLUB, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    HAILE PLANTATION MANAGEMENT CORP.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    HARBOUR CLUB OF CHARLESTON, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    HEARTHSTONE COUNTRY CLUB, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  HILL COUNTRY GOLF, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  HILLS II OF LAKEWAY, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  HOUSTON CITY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  HPG, L.C.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  HUNTER'S GREEN ACQUISITION CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  INDIGO RUN ASSET CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  IRVING CLUB ACQUISITION CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  KINGWOOD COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  KNOLLWOOD COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  LA CIMA CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  LAKEWAY CLUBS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  LAUREL SPRINGS HOLDCO, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  LIONSGATE GOLF CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MAC CLUB, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MANAGEMENT COMPANY FOR EAGLE RIDGE AND THE PRESERVE

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MANAGER FOR CCHH, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MASTER CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MEMORIAL STADIUM CLUB MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MEMPHIS CITY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MH VILLAS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  MONARCH EP MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  NASHVILLE CLUB MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  NEW ENGLAND COUNTRY CLUB MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  NORTHWOOD MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  OAK POINTE COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  OAKMONT MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  OPERATIONS COMPANY FOR HOMESTEAD, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  OWNERS CLUB ASSET COMPANY

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  PIEDMONT CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  PIEDMONT GOLFERS' CLUB LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  PYRAMID CLUB MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  QUAIL HOLLOW MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  QUEENS HARBOUR CORPORATION

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  RENAISSANCE CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  RICHARDSON COUNTRY CLUB CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    RIVER CREEK COUNTRY CLUB, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    RIVERS CLUB, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    SHADY VALLEY MANAGEMENT CORP.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    SHOREBY CLUB MANAGEMENT, INC.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

    SILVER LAKE MANAGEMENT CORP.

 
 
By:
 
/s/ CURTIS D. MCCLELLAN
        Name:   Curtis D. McClellan
        Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  SKYLINE CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  SOCIETY MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  STONEBRIAR MANAGEMENT CORP.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  STONEHENGE CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  TAMPA PALMS CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE 191 CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE BUCKHEAD CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE CLUB AT CIMARRON, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE CLUB AT SOCIETY CENTER, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE COMMERCE CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE DOWNTOWN CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE MANAGER OF THE OWNER'S CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE METROPOLITAN CLUB OF CHICAGO, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE OWNER'S CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE OWNERS CLUB AT HILTON HEAD, L.P.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE OWNER'S CLUB OF SOUTH CAROLINA, L.L.C.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE PLAZA CLUB OF SAN ANTONIO, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE SUMMIT CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  THE UNIVERSITY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer

SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  TIMARRON GOLF CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  TOWER CITY CLUB OF VIRGINIA, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  TOWER CLUB OF DALLAS, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  TOWER CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  TOWN POINT CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  TREESDALE COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  UMASS CLUB MANAGEMENT, LLC

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  UNC ALUMNI CLUB MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  UNIVERSITY CLUB MANAGEMENT CO., INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  UNIVERSITY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  WALNUT CREEK MANAGEMENT CORPORATION

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-203

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  WEST PARK CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-204

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  WESTLAKE CITY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-205

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  WILDFLOWER COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-206

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 SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  WILLOW CREEK MANAGEMENT, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-207

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on March 28, 2011.

  WOODSIDE PLANTATION COUNTRY CLUB, INC.

 

By:

  

/s/ CURTIS D. MCCLELLAN

      Name:   Curtis D. McClellan

      Title:   Treasurer


SIGNATURES AND POWERS OF ATTORNEY

        Each person whose signature appears below constitutes and appoints Curtis D. McClellan and Ingrid J. Keiser and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by or on behalf of the following persons in the capacities indicated on March 28, 2011.

Signature
 
Title

 
 
 
/s/ ERIC L. AFFELDT
 Eric L. Affeldt		   President and Director (Principal Executive Officer)

/s/ CURTIS D. MCCLELLAN
 Curtis D. McClellan
 
Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ INGRID J. KEISER
 Ingrid J. Keiser
 
Director

II-208

Table of Contents


EXHIBIT INDEX

Exhibit No.   Description of Exhibit
  3.1 (a) Certificate of Incorporation of ClubCorp Club Operations, Inc.
       
  3.1 (b) Bylaws of ClubCorp Club Operations, Inc.
       
  3.2 (a) Certificate of Formation of Limited Liability Company of 191 Athletic Club Management Company, LLC
       
  3.2 (b) Amended and Restated Limited Liability Company Agreement of 191 Athletic Club Management Company, LLC
       
  3.3 (a) Certificate of Formation of 191 CC Operating Co., LLC
       
  3.3 (b) Amended and Restated Limited Liability Company Agreement of 191 CC Operating Co., LLC
       
  3.4 (a) Amended and Restated Articles of Incorporation of Akron Management Corp.
       
  3.4 (b) Amended and Restated By-Laws of Akron Management Corp.
       
  3.5 (a) Statement of Partnership Authority of Aliso Viejo Golf Club Joint Venture
       
  3.5 (b) Joint Venture Agreement of Aliso Viejo Golf Club Joint Venture
       
  3.6 (a) Articles of Organization for Anthem Golf, LLC
       
  3.6 (b) Amended and Restated Limited Liability Company Operating Agreement of Anthem Golf, LLC
       
  3.7 (a) Amended and Restated Certificate of Formation of April Sound Management Corp.
       
  3.7 (b) Amended and Restated Bylaws of April Sound Management Corp.
       
  3.8 (a) Amended and Restated Articles of Incorporation of Aspen Glen Golf Club Management Company
       
  3.8 (b) Amended and Restated By-Laws of Aspen Glen Golf Club Management Company
       
  3.9 (a) Restated Certificate of Incorporation of Athletic Club at the Equitable Center, Inc.
       
  3.9 (b) Amended and Restated By-Laws of Athletic Club at the Equitable Center, Inc.
       
  3.10 (a) Certificate of Formation of Limited Liability Company of AZ Club, LLC
       
  3.10 (b) Amended and Restated Limited Liability Company Agreement of AZ Club, LLC
       
  3.11 (a) Amended and Restated Certificate of Formation of Barton Creek Resort & Clubs, Inc.
       
  3.11 (b) Amended and Restated Bylaws of Barton Creek Resort & Clubs, Inc.
       
  3.12 (a) Amended and Restated Certificate of Formation of Bay Oaks Country Club, Inc.
       
  3.12 (b) Amended and Restated Bylaws of Bay Oaks Country Club, Inc.
       
  3.13 (a) Articles of Organization of Bluegrass Club, LLC
       
  3.13 (b) Second Amended and Restated Limited Liability Company Operating Agreement of Bluegrass Club, LLC
       
  3.14 (a) Amended and Restated Certificate of Formation of Brookhaven Country Club, Inc.
       
  3.14 (b) Amended and Restated Bylaws of Brookhaven Country Club, Inc.
       
  3.15 (a) Certificate of Third Amended and Restated Articles of Incorporation of Canyon Gate at Las Vegas, Inc.
       

Table of Contents

Exhibit No.   Description of Exhibit
  3.15 (b) Amended and Restated By-Laws of Canyon Gate at Las Vegas, Inc.
       
  3.16 (a) Amended and Restated Articles of Incorporation of Capital City Club of Montgomery, Inc.
       
  3.16 (b) Amended and Restated Bylaws of Capital City Club of Montgomery, Inc.
       
  3.17 (a) Articles of Restatement of Capital City Club of Raleigh, Inc.
       
  3.17 (b) Amended and Restated By-Laws of Capital City Club of Raleigh, Inc.
       
  3.18 (a) Certificate of Formation of CCA Golf Course Holdco, LLC
       
  3.18 (b) Amended and Restated Limited Liability Company Agreement of CCA Golf Course Holdco, LLC
       
  3.19 (a) Certificate of Formation of CCA Mezzanine Holdco, LLC
       
  3.19 (b) Amended and Restated Limited Liability Company Agreement of CCA Mezzanine Holdco, LLC
       
  3.20 (a) Amended and Restated Articles of Incorporation of Centre Club, Inc.
       
  3.20 (b) Amended and Restated By-Laws of Centre Club, Inc.
       
  3.21 (a) Amended and Restated Articles of Incorporation of Citrus Club, Inc.
       
  3.21 (b) Amended and Restated By-Laws of Citrus Club, Inc.
       
  3.22 (a) Amended and Restated Articles of Incorporation of City Club of Washington, Inc.
       
  3.22 (b) Amended and Restated By-Laws of City Club of Washington, Inc.
       
  3.23 (a) Restated Articles of Organization of Club at Boston College, Inc.
       
  3.23 (b) Amended and Restated By-Laws of Club at Boston College, Inc.
       
  3.24 (a) Amended and Restated Charter of Club Le Conte, Inc.
       
  3.24 (b) Amended and Restated By-Laws of Club Le Conte, Inc.
       
  3.25 (a) Articles of Incorporation of ClubCorp—Asia
       
  3.25 (b) Amended and Restated By-Laws of ClubCorp—Asia
       
  3.26 (a) Amended and Restated Certificate of Incorporation of ClubCorp Airways Golf, Inc.
       
  3.26 (b) By-Laws of ClubCorp Airways Golf, Inc.
       
  3.27 (a) Amended and Restated Certificate of Incorporation of ClubCorp Aliso Viejo Holding Corp.
       
  3.27 (b) By-Laws of ClubCorp Aliso Viejo Holding Corp.
       
  3.28 (a) Articles of Incorporation of ClubCorp Asia Investments Inc.
       
  3.28 (b) Bylaws of ClubCorp Asia Investments Inc.
       
  3.29 (a) Certificate of Incorporation of ClubCorp Aven Holdings, Inc.
       
  3.29 (b) Bylaws of ClubCorp Aven Holdings, Inc.
       
  3.30 (a) Amended and Restated Certificate of Incorporation of ClubCorp Braemar Country Club, Inc.
       
  3.30 (b) By-Laws of ClubCorp Braemar Country Club, Inc.
       
  3.31 (a) Amended and Restated Certificate of Incorporation of ClubCorp Bunker Hill Club, Inc.
       

Table of Contents

Exhibit No.   Description of Exhibit
  3.31 (b) By-Laws of ClubCorp Bunker Hill Club, Inc.
       
  3.32 (a) Certificate of Incorporation of ClubCorp Buying Services, Inc.
       
  3.32 (b) Bylaws of ClubCorp Buying Services, Inc.
       
  3.33 (a) Amended and Restated Certificate of Incorporation of ClubCorp Canyon Crest Country Club, Inc.
       
  3.33 (b) By-Laws of ClubCorp Canyon Crest Country Club, Inc.
       
  3.34 (a) Amended and Restated Certificate of Incorporation of ClubCorp Center Club, Inc.
       
  3.34 (b) By-Laws of ClubCorp Center Club, Inc.
       
  3.35 (a) Amended and Restated Certificate of Incorporation of ClubCorp Coto Property Holdings, Inc.
       
  3.35 (b) By-Laws of ClubCorp Coto Property Holdings, Inc.
       
  3.36 (a) Amended and Restated Certificate of Incorporation of ClubCorp Crow Canyon Management Corp.
       
  3.36 (b) By-Laws of ClubCorp Crow Canyon Management Corp.
       
  3.37 (a) Amended and Restated Certificate of Incorporation of ClubCorp Desert Falls Country Club, Inc.
       
  3.37 (b) By-Laws of ClubCorp Desert Falls Country Club, Inc.
       
  3.38 (a) Articles of Incorporation of ClubCorp Financial Management Company
       
  3.38 (b) Bylaws of ClubCorp Financial Management Company
       
  3.39 (a) Amended and Restated Certificate of Incorporation of ClubCorp GCL Corporation
       
  3.39 (b) By-Laws of ClubCorp GCL Corporation
       
  3.40 (a) Certificate of Formation of ClubCorp Gen Par of Texas, L.L.C.
       
  3.40 (b) Third Amended and Restated Limited Liability Company Agreement of ClubCorp Gen Par of Texas, L.L.C.
       
  3.41 (a) Certificate of Formation of ClubCorp Golf of California, L.L.C.
       
  3.41 (b) Third Amended and Restated Limited Liability Company Agreement of ClubCorp Golf of California, L.L.C.
       
  3.42 (a) Certificate of Formation of ClubCorp Golf of Florida, L.L.C.
       
  3.42 (b) Third Amended and Restated Limited Liability Company Agreement of ClubCorp Golf of Florida, L.L.C.
       
  3.43 (a) Certificate of Limited Partnership of ClubCorp Golf of Georgia, L.P.
       
  3.43 (b) Third Amended and Restated Limited Partnership Agreement of ClubCorp Golf of Georgia, L.P.
       
  3.44 (a) Certificate of Formation of ClubCorp Golf of North Carolina, L.L.C.
       
  3.44 (b) Third Amended and Restated Limited Liability Company Agreement of ClubCorp Golf of North Carolina, L.L.C.
       
  3.45 (a) Certificate of Limited Partnership of ClubCorp Golf of Texas, L.P.
       
  3.45 (b) Third Amended and Restated Limited Partnership Agreement of ClubCorp Golf of Texas, L.P.

Table of Contents

Exhibit No.   Description of Exhibit
  3.46 (a) Amended and Restated Certificate of Incorporation of ClubCorp Granite Bay Management, Inc.
       
  3.46 (b) By-Laws of ClubCorp Granite Bay Management, Inc.
       
  3.47 (a) Articles of Incorporation of ClubCorp Graphics, Inc.
       
  3.47 (b) Bylaws of Club Graphics, Inc.
       
  3.48 (a) Certificate of Formation of ClubCorp Hamlet, LLC
       
  3.48 (b) Limited Liability Company Agreement of ClubCorp Hamlet, LLC
       
  3.49 (a) Articles of Incorporation of ClubCorp International, Inc.
       
  3.49 (b) By-Laws of ClubCorp International, Inc.
       
  3.50 (a) Amended and Restated Certificate of Incorporation of ClubCorp IW Golf Club, Inc.
       
  3.50 (b) By-Laws of ClubCorp IW Golf Club, Inc.
       
  3.51 (a) Certificate of Formation of ClubCorp Management Company for Stone Creek, LLC
       
  3.51 (b) Amended and Restated Limited Liability Company Agreement of ClubCorp Management Company for Stone Creek, LLC
       
  3.52 (a) Third Amended and Restated Articles of Incorporation of ClubCorp Mexico, Inc.
       
  3.52 (b) Amended and Restated By-Laws of ClubCorp Mexico, Inc.
       
  3.53 (a) Certificate of Formation of ClubCorp Mezzanine Borrower, LLC
       
  3.53 (b) Second Amended and Restated Limited Liability Company Agreement of ClubCorp Mezzanine Borrower, LLC
       
  3.54 (a) Amended and Restated Certificate of Incorporation of ClubCorp Mission Hills Country Club, Inc.
       
  3.54 (b) By-Laws of ClubCorp Mission Hills Country Club, Inc.
       
  3.55 (a) Certificate of Formation of ClubCorp Mortgage Borrower, LLC
       
  3.55 (b) Amended and Restated Limited Liability Company Agreement of ClubCorp Mortgage Borrower, LLC
       
  3.56 (a) Amended and Restated Certificate of Incorporation of ClubCorp Porter Valley Country Club, Inc.
       
  3.56 (b) By-Laws of ClubCorp Porter Valley Country Club, Inc.
       
  3.57 (a) Articles of Incorporation of ClubCorp Publications, Inc.
       
  3.57 (b) Bylaws of ClubCorp Publications, Inc.
       
  3.58 (a) Amended and Restated Certificate of Incorporation of ClubCorp San Jose Club, Inc.
       
  3.58 (b) By-Laws of ClubCorp San Jose Club, Inc.
       
  3.59 (a) Amended and Restated Certificate of Incorporation of ClubCorp Shadow Ridge Golf Club, Inc.
       
  3.59 (b) By-Laws of ClubCorp Shadow Ridge Golf Club, Inc.
       
  3.60 (a) Amended and Restated Certificate of Incorporation of ClubCorp Spring Valley Lake Country Club, Inc.
       
  3.60 (b) By-Laws of ClubCorp Spring Valley Lake Country Club, Inc.
       

Table of Contents

Exhibit No.   Description of Exhibit
  3.61 (a) Amended and Restated Certificate of Incorporation of ClubCorp Symphony Towers Club, Inc.
       
  3.61 (b) By-Laws of ClubCorp Symphony Towers Club, Inc.
       
  3.62 (a) Amended and Restated Certificate of Incorporation of ClubCorp Teal Bend Golf Club, Inc.
       
  3.62 (b) By-Laws of ClubCorp Teal Bend Golf Club, Inc.
       
  3.63 (a) Certificate of Formation of ClubCorp TTC, LLC
       
  3.63 (b) Limited Liability Company Agreement of ClubCorp TTC, LLC
       
  3.64 (a) Amended and Restated Certificate of Incorporation of ClubCorp Turkey Creek Golf Club, Inc.
       
  3.64 (b) By-Laws of ClubCorp Turkey Creek Golf Club, Inc.
       
  3.65 (a) Certificate of Incorporation of ClubCorp USA, Inc.
       
  3.65 (b) Bylaws of ClubCorp USA, Inc.
       
  3.66 (a) Certificate of Formation of ClubCorp Willow Creek, LLC
       
  3.66 (b) Limited Liability Company Agreement of ClubCorp Willow Creek, LLC
       
  3.67 (a) Certificate of Formation of ClubCorp Wind Watch, LLC
       
  3.67 (b) Limited Liability Company Agreement of ClubCorp Wind Watch, LLC
       
  3.68 (a) Amended and Restated Articles of Incorporation of Columbia Capital City Club Corp.
       
  3.68 (b) Amended and Restated By-Laws of Columbia Capital City Club Corp.
       
  3.69 (a) Amended and Restated Articles of Incorporation of Columbia Tower Club, Inc.
       
  3.69 (b) Amended and Restated By-Laws of Columbia Tower Club, Inc.
       
  3.70 (a) Amended and Restated Articles of Incorporation of Countryside Country Club, Inc.
       
  3.70 (b) Amended and Restated By-Laws of Countryside Country Club, Inc.
       
  3.71 (a) Certificate of Formation of Currituck Golf, LLC
       
  3.71 (b) Second Amended and Restated Limited Liability Company Agreement of Currituck Golf, LLC
       
  3.72 (a) Amended and Restated Certificate of Formation of Dallas Tower Club, Inc.
       
  3.72 (b) Amended and Restated Bylaws of Dallas Tower Club, Inc.
       
  3.73 (a) Amended and Restated Articles of Incorporation of Dayton Racquet Club, Inc.
       
  3.73 (b) Amended and Restated By-Laws of Dayton Racquet Club, Inc.
       
  3.74 (a) Amended and Restated Articles of Incorporation of DeBary Management Corp.
       
  3.74 (b) Amended and Restated By-Laws of DeBary Management Corp.
       
  3.75 (a) Amended and Restated Articles of Incorporation of Diamante' Golf Club Management, Inc.
       
  3.75 (b) Amended and Restated By-Laws of Diamante' Golf Club Management, Inc.
       
  3.76 (a) Amended and Restated Articles of Incorporation of Diamante' Golf Club Partners, Inc.
       
  3.76 (b) Amended and Restated By-Laws of Diamante' Golf Club Partners, Inc.
       

Table of Contents

Exhibit No.   Description of Exhibit
  3.77 (a) Amended and Restated Articles of Incorporation of Diamond Run Club, Inc.
       
  3.77 (b) Bylaws of Diamond Run Club, Inc.
       
  3.78 (a) Certificate of Formation of Empire Ranch, LLC
       
  3.78 (b) Second Amended and Restated Limited Liability Company Agreement of Empire Ranch, LLC
       
  3.79 (a) Amended and Restated Certificate of Formation of Fair Oaks Club Corp.
       
  3.79 (b) Amended and Restated Bylaws of Fair Oaks Club Corp.
       
  3.80 (a) Certificate of Formation of Limited Liability Company Farms of New Kent Management, LLC
       
  3.80 (b) Limited Liability Company Agreement of Farms of New Kent Management, LLC
       
  3.81 (a) Certificate of Formation of FFFC Golf Acquisitions, L.L.C.
       
  3.81 (b) Second Amended and Restated Limited Liability Company Agreement of FFFC Golf Acquisitions, L.L.C.
       
  3.82 (a) Amended and Restated Articles of Incorporation of First City Club Management, Inc.
       
  3.82 (b) Amended and Restated By-Laws of First City Club Management, Inc.
       
  3.83 (a) Amended and Restated Certificate of Formation of Fort Bend Acquisition Corp.
       
  3.83 (b) Amended and Restated Bylaws of Fort Bend Acquisition Corp.
       
  3.84 (a) Amended and Restated Certificate of Formation of GCC Asset Management, Inc.
       
  3.84 (b) Amended and Restated Bylaws of GCC Asset Management, Inc.
       
  3.85 (a) Amended and Restated Articles of Incorporation of Glendale Management Corp.
       
  3.85 (b) Amended and Restated By-Laws of Glendale Management Corp.
       
  3.86 (a) Amended and Restated Articles of Incorporation of Glendale Racquet Club, Inc.
       
  3.86 (b) Amended and Restated By-Laws of Glendale Racquet Club, Inc.
       
  3.87 (a) Amended and Restated Articles of Incorporation of GP Bear's Best Atlanta, Inc.
       
  3.87 (b) Amended and Restated By-Laws of GP Bear's Best Atlanta, Inc.
       
  3.88 (a) Certificate of Third Amended and Restated Articles of Incorporation of GP Bear's Best Las Vegas, Inc.
       
  3.88 (b) Amended and Restated By-Laws of GP Bear's Best Las Vegas, Inc.
       
  3.89 (a) Articles of Incorporation of GRanch Golf Club, Inc.
       
  3.89 (b) Amended and Restated By-Laws of GRanch Golf Club, Inc.
       
  3.90 (a) Amended and Restated Articles of Incorporation of Greenbrier Country Club, Inc.
       
  3.90 (b) Amended and Restated By-Laws of Greenbrier Country Club, Inc.
       
  3.91 (a) Amended and Restated Certificate of Formation of Greenspoint Club, Inc.
       
  3.91 (b) Amended and Restated Bylaws of Greenspoint Club, Inc.
       
  3.92 (a) Amended and Restated Certificate of Formation of Hackberry Creek Country Club, Inc.
       
  3.92 (b) Amended and Restated Bylaws of Hackberry Creek Country Club, Inc.
       
  3.93 (a) Amended and Restated Articles of Incorporation of Haile Plantation Management Corp.

Table of Contents

Exhibit No.   Description of Exhibit
  3.93 (b) Amended and Restated By-Laws of Haile Plantation Management Corp.
       
  3.94 (a) Amended and Restated Articles of Incorporation of Harbour Club of Charleston, Inc.
       
  3.94 (b) Bylaws of Harbour Club of Charleston, Inc.
       
  3.95 (a) Amended and Restated Certificate of Formation of Hearthstone Country Club, Inc.
       
  3.95 (b) Amended and Restated Bylaws of Hearthstone Country Club, Inc.
       
  3.96 (a) Amended and Restated Certificate of Formation of Hill Country Golf, Inc.
       
  3.96 (b) Amended and Restated Bylaws of Hill Country Golf, Inc.
       
  3.97 (a) Articles of Incorporation of Hills II of Lakeway, Inc.
       
  3.97 (b) Amended and Restated Bylaws of Hills II of Lakeway, Inc.
       
  3.98 (a) Amended and Restated Certificate of Formation of Houston City Club, Inc.
       
  3.98 (b) Amended and Restated Bylaws of Houston City Club, Inc.
       
  3.99 (a) Articles of Organization of HPG, L.C.
       
  3.99 (b) Amended and Restated Operating Agreement for HPG, L.C.
       
  3.100 (a) Amended and Restated Articles of Incorporation of Hunter's Green Acquisition Corp.
       
  3.100 (b) Amended and Restated By-Laws of Hunter's Green Acquisition Corp.
       
  3.101 (a) Amended and Restated Articles of Incorporation of Indigo Run Asset Corp.
       
  3.101 (b) Amended and Restated By-Laws of Indigo Run Asset Corp.
       
  3.102 (a) Amended and Restated Certificate of Formation of Irving Club Acquisition Corp.
       
  3.102 (b) Amended and Restated Bylaws of Irving Club Acquisition Corp.
       
  3.103 (a) Amended and Restated Certificate of Formation of Kingwood Country Club, Inc.
       
  3.103 (b) Amended and Restated Bylaws of Kingwood Country Club, Inc.
       
  3.104 (a) Certificate of Amended and Restated Articles of Knollwood Country Club, Inc.
       
  3.104 (b) Amended and Restated By-Laws of Knollwood Country Club, Inc.
       
  3.105 (a) Amended and Restated Certificate of Formation of La Cima Club, Inc.
       
  3.105 (b) Amended and Restated Bylaws of La Cima Club, Inc.
       
  3.106 (a) Amended and Restated Certificate of Formation of Lakeway Clubs, Inc.
       
  3.106 (b) Amended and Restated Bylaws of Lakeway Clubs, Inc.
       
  3.107 (a) Certificate of Formation of Laurel Springs Holdco, LLC
       
  3.107 (b) Amended and Restated Limited Liability Company Agreement of Laurel Springs Holdco, LLC
       
  3.108 (a) Amended and Restated Articles of Incorporation of LionsGate Golf Club, Inc.
       
  3.108 (b) Amended and Restated By-Laws of LionsGate Golf Club, Inc.
       
  3.109 (a) Amended and Restated Certificate of Formation of MAC Club, LLC
       
  3.109 (b) Second Amended and Restated Limited Liability Company Agreement of MAC Club, LLC
       

Table of Contents

Exhibit No.   Description of Exhibit
  3.110 (a) Amended and Restated Articles of Incorporation of Management Company for Eagle Ridge and The Preserve
       
  3.110 (b) Amended and Restated By-Laws of Management Company for Eagle Ridge and The Preserve
       
  3.111 (a) Amended and Restated Articles of Incorporation of Manager for CCHH, Inc.
       
  3.111 (b) Amended and Restated By-Laws of Manager for CCHH, Inc.
       
  3.112 (a) Articles of Incorporation of Master Club, Inc.
       
  3.112 (b) Bylaws of Master Club, Inc.
       
  3.113 (a) Amended and Restated Certificate of Formation of Memorial Stadium Club Management Corp.
       
  3.113 (b) Amended and Restated Bylaws of Memorial Stadium Club Management Corp.
       
  3.114 (a) Amended and Restated Charter of Memphis City Club, Inc.
       
  3.114 (b) Amended and Restated By-Laws of Memphis City Club, Inc.
       
  3.115 (a) Articles of Incorporation of MH Villas, Inc.
       
  3.115 (b) Amended and Restated By-Laws of MH Villas, Inc.
       
  3.116 (a) Articles of Incorporation of Monarch EP Management Corp.
       
  3.116 (b) Bylaws of Monarch EP Management Corp.
       
  3.117 (a) Amended and Restated Charter of Nashville Club Management, Inc.
       
  3.117 (b) Amended and Restated By-Laws of Nashville Club Management, Inc.
       
  3.118 (a) Restated Articles of Organization of New England Country Club Management, Inc.
       
  3.118 (b) Amended and Restated By-Laws of New England Country Club Management, Inc.
       
  3.119 (a) Amended and Restated Articles of Incorporation of Northwood Management Corp.
       
  3.119 (b) Amended and Restated By-Laws of Northwood Management Corp.
       
  3.120 (a) Restated Articles of Incorporation of Oak Pointe Country Club, Inc.
       
  3.120 (b) Amended and Restated By-Laws of Oak Pointe Country Club, Inc.
       
  3.121 (a) Amended and Restated Certificate of Formation of Oakmont Management Corp.
       
  3.121 (b) Amended and Restated Bylaws of Oakmont Management Corp.
       
  3.122 (a) Amended and Restated Articles of Incorporation of Operations Company for Homestead, Inc.
       
  3.122 (b) Amended and Restated By-Laws of Operations Company for Homestead, Inc.
       
  3.123 (a) Articles of Incorporation of Owners Club Asset Company
       
  3.123 (b) Bylaws of Owners Club Asset Company
       
  3.124 (a) Articles of Restatement of Piedmont Club, Inc.
       
  3.124 (b) Amended and Restated By-Laws of Piedmont Club, Inc.
       
  3.125 (a) Amended Articles of Organization of Piedmont Golfers' Club LLC
       
  3.125 (b) Third Amended and Restated Limited Liability Company Agreement of Piedmont Golfers' Club LLC
       

Table of Contents

Exhibit No.   Description of Exhibit
  3.126 (a) Amended and Restated Articles of Incorporation of Pyramid Club Management, Inc.
       
  3.126 (b) Amended and Restated By-Laws of Pyramid Club Management, Inc.
       
  3.127 (a) Amended and Restated Articles of Incorporation of Quail Hollow Management, Inc.
       
  3.127 (b) Amended and Restated By-Laws of Quail Hollow Management, Inc.
       
  3.128 (a) Amended and Restated Articles of Incorporation of Queens Harbour Corporation
       
  3.128 (b) Amended and Restated By-Laws of Queens Harbour Corporation
       
  3.129 (a) Restated Articles of Incorporation of Renaissance Club, Inc.
       
  3.129 (b) Amended and Restated By-Laws of Renaissance Club, Inc.
       
  3.130 (a) Amended and Restated Certificate of Formation of Richardson Country Club Corp.
       
  3.130 (b) Amended and Restated Bylaws of Richardson Country Club Corp.
       
  3.131 (a) Amended and Restated Articles of Incorporation of River Creek Country Club, Inc.
       
  3.131 (b) Amended and Restated By-Laws of River Creek Country Club, Inc.
       
  3.132 (a) Amended and Restated Articles of Incorporation of Rivers Club, Inc.
       
  3.132 (b) Amended and Restated By-Laws of Rivers Club, Inc.
       
  3.133 (a) Amended and Restated Certificate of Formation of Shady Valley Management Corp.
       
  3.133 (b) Amended and Restated Bylaws of Shady Valley Management Corp.
       
  3.134 (a) Amended and Restated Articles of Incorporation of Shoreby Club Management, Inc.
       
  3.134 (b) Amended and Restated By-Laws of Shoreby Club Management, Inc.
       
  3.135 (a) Amended and Restated Articles of Incorporation of Silver Lake Management Corp.
       
  3.135 (b) Amended and Restated By-Laws of Silver Lake Management Corp.
       
  3.136 (a) Amended and Restated Articles of Skyline Club, Inc.
       
  3.136 (b) Amended and Restated By-Laws of Skyline Club, Inc.
       
  3.137 (a) Articles of Incorporation of Society Management, Inc.
       
  3.137 (b) Bylaws of Society Management, Inc.
       
  3.138 (a) Articles of Amendment and Restatement of the Articles of Incorporation of Southern Trace Country Club of Shreveport, Inc.
       
  3.138 (b) Amended and Restated By-Laws of Southern Trace Country Club of Shreveport, Inc.
       
  3.139 (a) Amended and Restated Certificate of Formation of Stonebriar Management Corp.
       
  3.139 (b) Amended and Restated Bylaws of Stonebriar Management Corp.
       
  3.140 (a) Amended and Restated Articles of Incorporation of Stonehenge Club, Inc.
       
  3.140 (b) Amended and Restated By-Laws of Stonehenge Club, Inc.
       
  3.141 (a) Amended and Restated Articles of Incorporation of Tampa Palms Club, Inc.
       
  3.141 (b) Bylaws of Tampa Palms Club, Inc.
       
  3.142 (a) Amended and Restated Articles of Incorporation of The 191 Club, Inc.
       
  3.142 (b) Amended and Restated By-Laws of The 191 Club, Inc.
       
  3.143 (a) Amended and Restated Articles of Incorporation of The Buckhead Club, Inc.

Table of Contents

Exhibit No.   Description of Exhibit
  3.143 (b) Amended and Restated By-Laws of The Buckhead Club, Inc.
       
  3.144 (a) Amended and Restated Certificate of Formation of The Club at Cimarron, Inc.
       
  3.144 (b) Amended and Restated Bylaws of The Club at Cimarron, Inc.
       
  3.145 (a) Amended and Restated Articles of Incorporation of The Club at Society Center, Inc.
       
  3.145 (b) Amended and Restated By-Laws of The Club at Society Center, Inc.
       
  3.146 (a) Amended and Restated Articles of Incorporation of The Commerce Club, Inc.
       
  3.146 (b) Amended and Restated By-Laws of The Commerce Club, Inc.
       
  3.147 (a) Amended and Restated Certificate of Formation of The Downtown Club, Inc.
       
  3.147 (b) Amended and Restated Bylaws of The Downtown Club, Inc.
       
  3.148 (a) Articles of Incorporation of The Manager of the Owner's Club, Inc.
       
  3.148 (b) Amended and Restated By-Laws of The Manager of the Owner's Club, Inc.
       
  3.149 (a) Amended and Restated Articles of Incorporation of The Metropolitan Club of Chicago, Inc.
       
  3.149 (b) Amended and Restated By-Laws of The Metropolitan Club of Chicago, Inc.
       
  3.150 (a) Certificate of Incorporation of The Owner's Club, Inc.
       
  3.150 (b) Bylaws of The Owner's Club, Inc.
       
  3.151 (a) Certificate of Limited Partnership of The Owner's Club at Hilton Head, L.P.
       
  3.151 (b) Amended Limited Partnership Agreement of the Owners Club at Hilton Head, L.P.
       
  3.152 (a) Amended and Restated Certificate of Formation of The Owners Club of South Carolina, L.L.C.
       
  3.152 (b) Amended and Restated Limited Liability Company Agreement of The Owner's Club of South Carolina, L.L.C.
       
  3.153 (a) Amended and Restated Certificate of Formation of The Plaza Club of San Antonio, Inc.
       
  3.153 (b) Amended and Restated Bylaws of The Plaza Club of San Antonio, Inc.
       
  3.154 (a) Amended and Restated Articles of Incorporation of The Summit Club, Inc.
       
  3.154 (b) Amended and Restated Bylaws of The Summit Club, Inc.
       
  3.155 (a) Restated Articles of Incorporation of The University Club, Inc.
       
  3.155 (b) Amended and Restated By-Laws of The University Club, Inc.
       
  3.156 (a) Amended and Restated Certificate of Formation of Timarron Golf Club, Inc.
       
  3.156 (b) Amended and Restated Bylaws of Timarron Golf Club, Inc.
       
  3.157 (a) Amended and Restated Articles of Incorporation of Tower City Club of Virginia, Inc.
       
  3.157 (b) Amended and Restated By-Laws of Tower City Club of Virginia, Inc.
       
  3.158 (a) Amended and Restated Certificate of Formation of Tower Club of Dallas, Inc.
       
  3.158 (b) Amended and Restated Bylaws of Tower Club of Dallas, Inc.
       
  3.159 (a) Amended and Restated Articles of Incorporation of Tower Club, Inc.
       
  3.159 (b) Amended and Restated By-Laws of Tower Club, Inc.
       

Table of Contents

Exhibit No.   Description of Exhibit
  3.160 (a) Amended and Restated Articles of Incorporation of Town Point Club, Inc.
       
  3.160 (b) Amended and Restated By-Laws of Town Point Club, Inc.
       
  3.161 (a) Amended and Restated Articles of Incorporation of Treesdale Country Club, Inc.
       
  3.161 (b) Amended and Restated By-Laws of Treesdale Country Club, Inc.
       
  3.162 (a) Certificate of Formation of UMass Club Management, LLC
       
  3.162 (b) Second Amended and Restated Limited Liability Company Agreement of UMass Club Management, LLC
       
  3.163 (a) Articles of Restatement of UNC Alumni Club Management, Inc.
       
  3.163 (b) Amended and Restated By-Laws of UNC Alumni Club Management, Inc.
       
  3.164 (a) Amended and Restated Articles of Incorporation of University Club Management Co., Inc.
       
  3.164 (b) Amended and Restated By-Laws of University Club Management Co., Inc.
       
  3.165 (a) Amended and Restated Articles of Incorporation of University Club, Inc.
       
  3.165 (b) Amended and Restated By-Laws of University Club, Inc.
       
  3.166 (a) Amended and Restated Certificate of Formation of Walnut Creek Management Corporation
       
  3.166 (b) Amended and Restated Bylaws of Walnut Creek Management Corporation
       
  3.167 (a) Amended and Restated Certificate of Formation of West Park Club, Inc.
       
  3.167 (b) Amended and Restated Bylaws of West Park Club, Inc.
       
  3.168 (a) Amended and Restated Certificate of Formation of Westlake City Club, Inc.
       
  3.168 (b) Amended and Restated Bylaws of Westlake City Club, Inc.
       
  3.169 (a) Amended and Restated Certificate of Formation of Wildflower Country Club, Inc.
       
  3.169 (b) Amended and Restated Bylaws of Wildflower Country Club, Inc.
       
  3.170 (a) Amended and Restated Certificate of Formation of Willow Creek Management, Inc.
       
  3.170 (b) Amended and Restated Bylaws of Willow Creek Management, Inc.
       
  3.171 (a) Amended and Restated Articles of Incorporation of Woodside Plantation Country Club, Inc.
       
  3.171 (b) Amended and Restated By-Laws of Woodside Plantation Country Club, Inc.
       
  4.1   Indenture, dated as of November 30, 2010, among ClubCorp Club Operations, Inc., the subsidiary guarantors named therein, and Wilmington Trust FSB, as trustee
       
  4.2   Form of 10% Senior Note due 2018 (included in Exhibit 4.1 hereto)
       
  4.3   Registration Rights Agreement, dated as of November 30, 2010, among ClubCorp Club Operations, Inc., the subsidiary guarantors named therein and Citigroup Global Markets Inc.
       
  5.1   Opinion of Simpson Thacher and Bartlett LLP
       
  5.2   Opinion of Baker Hostetler
       
  5.3   Opinion of Bradley Arant Boult Cummings LLP
       
  5.4   Opinion of Brownstein Hyatt Farber Schreck, LLP

Table of Contents

Exhibit No.   Description of Exhibit
  5.5   Opinion of Brownstein Hyatt Farber Schreck, LLP
       
  5.6   Opinion of Brownstein Hyatt Farber Schreck, LLP
       
  5.7   Opinion of Dickinson Wright P.L.L.C.
       
  5.8   Opinion of Gardere Wynne Sewell LLP
       
  5.9   Opinion of Greenberg Traurig, LLP
       
  5.10   Opinion of Greenberg Traurig, LLP
       
  5.11   Opinion of Greenberg Traurig, LLP
       
  5.12   Opinion of Greenberg Traurig, LLP
       
  5.13   Opinion of Greenberg Traurig, LLP
       
  5.14   Opinion of Greenberg Traurig, LLP
       
  5.15   Opinion of Greenberg Traurig, LLP
       
  5.16   Opinion of Harris Shelton Hanover Walsh, P.L.L.C.
       
  5.17   Opinion of Harris Shelton Hanover Walsh, P.L.L.C.
       
  5.18   Opinion of Ice Miller LLP
       
  5.19   Opinion of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.
       
  5.20   Opinion of Perkins Coie LLP
       
  5.21   Opinion of Quarles & Brady LLP
       
  5.22   Opinion of Sher Garner Cahill Richter Klein & Hilbert, L.L.C.
       
  5.23   Opinion of Shook, Hardy & Bacon LLP
       
  5.24   Opinion of Womble Carlyle Sandridge & Rice, P.L.L.C.
       
  10.1   Offer letter dated as of March 1, 2011 between ClubCorp USA, Inc. and Eric L. Affeldt†
       
  10.2   Offer letter dated as of October 30, 2008 between ClubCorp USA, Inc. and Curtis D. McClellan†
       
  10.3   Offer letter dated as of December 4, 2006 between ClubCorp USA, Inc. and Mark A. Burnett†
       
  10.4   Offer letter dated as of December 21, 2009 between ClubCorp USA, Inc. and Blake S. Walker†
       
  10.5   Severance and release agreement dated as of December 21, 2010 between ClubCorp USA, Inc. and Dwayne R. Sigler†
       
  10.6   2011 Incentive Plan†
       
  10.7   Long Term Incentive Plan†
       
  10.8   Credit Agreement dated as of November 30, 2010 among CCA Club Operations Holdings, LLC, ClubCorp Club Operations, Inc. as Borrower, Citicorp North America, Inc. as Administrative Agent, Swing Line Lender and L/C Issuer, the other lenders party thereto and Citigroup Global Markets Inc. as Sole Arranger and Sole Bookrunner
       

Table of Contents

Exhibit No.   Description of Exhibit
  10.9   Guaranty and Security Agreement dated as of November 30, 2010 among ClubCorp Club Operations, Inc., each other Grantor from time to time party thereto and Citicorp North America, Inc., as Administrative Agent
       
  10.10   Form of Indemnification Agreement between ClubCorp Holdings, Inc. and its directors and officers
       
  12   Statement of Computation of Ratio of Earnings to Fixed Charges
       
  21   Subsidiaries of the Registrant
       
  23.1   Consent of Simpson Thacher and Bartlett LLP (included in Exhibit 5.1)
       
  23.2   Consent of Baker Hostetler (included in Exhibit 5.2)
       
  23.3   Consent of Bradley Arant Boult Cummings LLP (included in Exhibit 5.3)
       
  23.4   Consent of Brownstein Hyatt Farber Schreck, LLP (included in Exhibits 5.4, 5.5 and 5.6)
       
  23.5   Consent of Dickinson Wright PLLC (included in Exhibit 5.7)
       
  23.6   Consent of Gardere Wynne Sewell LLP (included in Exhibit 5.8)
       
  23.7   Consent of Greenberg Traurig, LLP (included in Exhibits 5.9, 5.10, 5.11, 5.12, 5.13, 5.14 and 5.15)
       
  23.8   Consent of Harris Shelton Hanover Walsh, PLLC (included in Exhibits 5.16 and 5.17)
       
  23.9   Consent of Ice Miller LLP (included in Exhibit 5.18)
       
  23.10   Consent of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. (included in Exhibit 5.19)
       
  23.11   Consent of Perkins Coie LLP (included in Exhibit 5.20)
       
  23.12   Consent of Quarles & Brady LLP (included in Exhibit 5.21)
       
  23.13   Consent of Sher Garner Cahill Richter Klein & Hilbert, L.L.C. (included in Exhibit 5.22)
       
  23.14   Consent of Shook, Hardy & Bacon LLP (included in Exhibit 5.23)
       
  23.15   Consent of Womble Carlyle Sandridge & Rice, P.L.L.C. (included in Exhibit 5.24)
       
  23.16   Consent of Deloitte & Touche LLP
       
  24   Powers of Attorney (included on the signature pages to the registration statement)
       
  25   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, with respect to the indenture governing the notes
       
  99.1   Form of Letter of Transmittal
       
  99.2   Form of Notice to Clients
       
  99.3   Form of Letter to Brokers, Dealers, Commercial banks, Trust Companies and other Nominees
       
  99.4   Form of Notice of Guaranteed Delivery
†
Indicates management contract or compensatory plan or arrangement.


EX-3.1(A) 2 a2202241zex-3_1a.htm EX-3.1(A)

Exhibit 3.1(a)

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 10:08 AM 11/03/2010
FILED 09:52 AM 11/03/2010
SRV 101051030 - 4892859 FILE

 

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP CLUB OPERATIONS, INC.

 

FIRST.  The name of the Corporation is ClubCorp Club Operations, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The purpose of the Corporation is to engage in any lawful activities and to exercise such powers permitted to corporations under the Delaware General Corporation Law (“DGCL”).

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  The Incorporator of the Corporation is Ingrid J. Keiser. The address of the Incorporator is 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234. All powers of the Incorporator will hereby terminate upon the filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware. The following persons are appointed as the initial directors of the Corporation, effective immediately, to serve and hold office until the first annual meeting of the stockholders or until such persons’ successors are duly elected and qualified:

 

Eric C. Resnick
3030 LBJ Freeway, Suite 600
Dallas, Texas 75234

 

Eric L. Affeldt
3030 LBJ Freeway, Suite 600
Dallas, Texas 75234

 

Martin J. Newburger
3030 LBJ Freeway, Suite 600
Dallas, Texas 75234

 

Michael S. Shannon
100 Fillmore Street, Suite 600
Denver, CO 80206

 


 

Steven S. Siegel
100 Fillmore Street, Suite 600
Denver, CO 80206

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or

 

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state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Incorporation this the 2nd day of November, 2010.

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

Ingrid J. Keiser,

 

 

Sole Incorporator

 

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 EX-3.1(B) 3 a2202241zex-3_1b.htm EX-3.1(B)

Exhibit 3.1(b)

 

BY-LAWS

 

OF

 

CLUBCORP CLUB OPERATIONS, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.     Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election: Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

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Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, Joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.2(A) 4 a2202241zex-3_2a.htm EX-3.2(A)

Exhibit 3.2(a)

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 01:37 PM 10/31/2008
FILED 01:29 PM 10/31/2008
SRV 081083419 - 4618220 FILE

 

CERTIFICATE OF FORMATION
OF
LIMITED LIABILITY COMPANY

 

FIRST:  The name of the limited liability company is 191 ATHLETIC CLUB MANAGEMENT COMPANY, LLC.

 

SECOND:  The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, DE 19808. The name of its Registered Agent at such address is Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of 191 ATHLETIC CLUB MANAGEMENT COMPANY, LLC this 31st day of October, 2008.

 

 

 

Corporation Service Company, Organizer

 

 

 

 

 

By

/s/ Susan M. Sagan

 

 

Susan M. Sagan

 

 

Authorized Person

 


 EX-3.2(B) 5 a2202241zex-3_2b.htm EX-3.2(B)

Exhibit 3.2(b)

 

AMENDED AND RESTATED

 

LIMITED LIABILITY COMPANY AGREEMENT
OF
191 ATHLETIC CLUB MANAGEMENT COMPANY, LLC

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of 191 Athletic Club Management Company, LLC (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on October 31, 2008, Susan M. Sagan, on behalf of Corporation Service Company, caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Agreement of 191 Athletic Club Management Company, LLC, dated as of October 31, 2008 entered into by ClubCorp USA, Inc. as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.         Name.

 

The name of the limited liability company continued hereby is 191 Athletic Club Management Company, LLC.

 

Section 2.         Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.         Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.         Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.         Members.

 

(a)        The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)       The Member may act by written consent.

 

Section 6.         Certificates.

 

Susan M. Sagan, on behalf of Corporation Service Company, was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by her in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, her powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.         Purposes.

 

The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be formed under the Act.

 

Section 8.         Powers.

 

The Company, and the Board of Managers and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.         Management.

 

(a)        Board of Managers. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Managers designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Managers to

 

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constitute the Board. The authorized number of Managers may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Managers. The initial number of Managers shall be three. Each Manager elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Manager’s earlier death, resignation, expulsion or removal. Managers need not be a Member. The Managers designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt
Eric C. Resnick; and
Martin J. Newburger.

 

(b)       Powers. The Board of Managers shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Managers has the authority to bind the Company.

 

(c)        Meeting of the Board of Managers. The Board of Managers of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Manager by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Managers.

 

(d)       Quorum: Acts of the Board. At all meetings of the Board, a majority of the Managers shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Managers present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Managers present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)        Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

3


 

(f)        Committees of Managers.

 

(i)        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Managers of the Company. The Board may designate one or more Managers as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)       In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)      Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)       Compensation of Managers; Expenses. The Board shall have the authority to fix the compensation of Managers. The Managers may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Manager. No such payment shall preclude any Manager from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)       Removal of Managers. Unless otherwise restricted by law, any Manager or the entire Board of Managers may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)         Managers as Agents. To the extent of their powers set forth in this Agreement, the Managers are agents of the Company for the purpose of the Company’s business, and the actions of the Managers taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Managers, a Manager may not bind the Company.

 

Section 10.       Officers.

 

(a)        Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their

 

4


 

offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

President;

Curt McClellan

Treasurer; and

Ingrid Keiser

Secretary.

 

(b)       President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)        Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Managers, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)       Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)        Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be

 

5


 

designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)        Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)       Duties of Board and Officers. Except to the extent otherwise provided herein, each Manager and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.       Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Manager shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Manager of the Company.

 

Section 12.       Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.       Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.       Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

6


 

Section 15.       Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 16.       Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.       Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.       Exculpation and Indemnification.

 

(a)        Neither the Member nor any Officer, Manager, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)       To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful

 

7


 

misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)        To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)       A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)        To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)        The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.       Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by

 

8


 

merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.       Resignation.

 

The Member may resign at any time.

 

Section 21.       Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 22.       Dissolution.

 

(a)        The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)       Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)        In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)       The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

9

 

Section 23.       Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the Member in the Company is personal property.

 

Section 24.       Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.       Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 26.       Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 27.       Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 28.       Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

10


 

Section 29.       Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 30.       Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 31.       Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November 2010.

 

 

MEMBER:

 

 

 

 

 

CLUBCORP USA, INC

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the A&R LLC Agreement — 191 Athletic Club Management Company LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Managers” means the Board of Managers of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on October 31, 2008, as amended or amended and restated from time to time.

 

“Company” means 191 Athletic Club Management Company, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise.

 

A-1


 

“Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Managers” means the persons elected to the Board of Managers from time to time by the Member in their capacity as managers of the Company. A Manager is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as the member of the Company, and includes any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.

 

$

100

 

100

%

 

 

c/o ClubCorp, Inc.

.

 

 

 

 

 

 

3030 LBJ Freeway, Suite 600

 

 

 

 

 

 

 

Dallas, TX 75234-7703

 

 

 

 

 

 

 

Attention: Director of Finance and Chief Legal Officer

 

 

 

 

 

 

B-1


 EX-3.3(A) 6 a2202241zex-3_3a.htm EX-3.3(A)

Exhibit 3.3(a)

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 02:42 PM 08/14/2009
FILED 02:32 PM 08/14/2009
SRV 090780567 - 4720529 FILE

 

CERTIFICATE OF FORMATION

 

OF

 

191 CC OPERATING CO., LLC

 

This Certificate of Formation of 191 CC Operating Co., LLC has been duly executed and is being filed by the undersigned, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (Del. C. tit. 6 § 18-101, et seq.).

 

FIRST: The name of the limited liability company formed hereby is 191 CC Operating Co., LLC (the “Company”).

 

SECOND: The address of the registered office of the Company in the State of Delaware is 2711 Centerville Rd., Suite 400, Wilmington, Delaware 19808, County of New Castle, and the name of the registered agent for service of process at such address is Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Formation as of August 14, 2009.

 

 

 

/s/ Thomas Romer

 

Thomas Romer
Authorized Person

 

 

 


 EX-3.3(B) 7 a2202241zex-3_3b.htm EX-3.3(B)

Exhibit 3.3(b)

 

AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
191 CC OPERATING CO., LLC

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of 191 CC Operating Co., LLC (the “Company”), is entered into by CCA Mezzanine Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on August 14, 2009, Thomas Romer caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Agreement of 191 CC Operating Co., LLC, entered into by CCA Mezzanine Holdco, LLC as the sole member (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.       Name.

 

The name of the limited liability company continued hereby is 191 CC Operating Co., LLC.

 

Section 2.       Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600, Dallas, TX 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.       Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.       Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.       Members.

 

(a)        The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)       The Member may act by written consent.

 

Section 6.       Certificates.

 

Thomas Romer was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.       Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)        to manage, lease and/or operate one or more sports or business clubs, in the City of Greenville, State of South Carolina, including the sports or business club commonly known as the Commerce Club, Inc. (the “Business”);

 

(b)       to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

(c)        to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)       to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

2


 

filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)        to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.       Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.       Management.

 

(a)        Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)       Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)        Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)       Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

3


 

or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)        Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)        Committees of Directors.

 

(i)            The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)           In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)          Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)       Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)       Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)         Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the

 

4


 

Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.     Reserved.

 

Section 11.     Officers.

 

(a)        Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)       President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)        Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)       Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in

 

5


 

order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)        Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)        Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)       Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.     imited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.     Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.     Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member

 

6


 

and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.     Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.     Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.     Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.     Reserved.

 

Section 19.     Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.     Exculpation and Indemnification.

 

(a)        Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person

 

7


 

shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)       To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)         To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)       A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)        To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)        The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.     Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its

 

8


 

agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.     Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.     Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.     Dissolution.

 

(a)        The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the

 

9


 

event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)       Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)        In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)       The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.     Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.     Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.     Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

10

 

Section 28.     Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.     Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.     Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.     Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.     Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.     Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.     Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

11


 

waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend:

 

This certificate evidences an interest in 191 CC Operating Co., LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CCA MEZZANINE HOLDCO, LLC

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:  Ingrid Keiser

 

 

Title:    Secretary

 

Signature Page to the A&R LLC Agreement — 191 CC Operating Co., LLC

 


 

SCHEDULE A

 

Definitions

 

A.                     Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on August 14, 2009, as amended or amended and restated from time to time.

 

“Company” means 191 CC Operating Co., LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means CCA Mezzanine Holdco, LLC, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                       Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

CCA Mezzanine

 

CCA Mezzanine Holdco, LLC

 

$

100

 

100

%

Holdco, LLC

 

c/o ClubCorp, Inc.

 

 

 

 

 

 

 

3030 LBJ Freeway, Suite 600

 

 

 

 

 

 

 

Dallas, TX 75234-7703

 

 

 

 

 

 

 

Attention: Director of Finance

 

 

 

 

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.         Eric L. Affeldt

 

2.         Eric C. Resnick

 

3.         Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR 191 CC OPERATING CO., LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-l

100% of Interests

 

191 CC Operating Co., LLC, a Delaware limited liability company (the “Company”), hereby certifies that CCA Mezzanine Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER     , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in 191 CC Operating Co., LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                        ] as of the date set forth below.

 

Dated:

 

 

 

 

 

Name:

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF 191 CC OPERATING CO., LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                              (print or typewrite name of Transferee),                                        (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                  (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                               , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

 

(Transferor)

 

 

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

E-2


 EX-3.4(A) 8 a2202241zex-3_4a.htm EX-3.4(A)

Exhibit 3.4(a)

 

[Secretary of State of Ohio Seal]

Prescribed by J. Kenneth Blackwell

Expedite this Form: (Select One)

Ohio Secretary of State

Mail Form to one of the Following:

Central Ohio: (614) 466-3910

o Yes

PO Box 1390

Toll Free: 1-877-SOS-FILE (1-877-767-3453)

Columbus, OH 43216

 

*** Requires an additional fee of $100 ***

 

o No

PO Box 1028

 

Columbus, OH 43216

 

 

www.state.oh.us/sos

 

 

e-mail: busserv@sos.state.oh.us

 

 

 

 

Certificate of Amendment by

 

 

 

Shareholders or Members

 

 

 

(Domestic)

 

 

 

Filing Fee $50.00

 

 

 

 

 

 

(CHECK ONLY ONE (1) BOX)

 

 

(1) Domestic for Profit

PLEASE READ INSTRUCTIONS

(2) Domestic Non-profit

 

      x Amended

o Amendment

      o Amended

o Amendment

          (122-AMAP)

     (125-AMDS)

          (126-AMAN)

     (128-AMD)

 

Complete the general information in this section for the box checked above.

 

Name of Corporation

Akron Management Corp.

 

Charter Number

569519

 

Name of Officer

Ingrid Keiser

 

Title

Secretary

 

x Please check if additional provisions attached.

 

The above named Ohio corporation, does hereby certify that:

 

o A meeting of the

o shareholders

o directors (non-profit amended articles only)

 

o members was duly called and held on

 

 

 

(Date)

 

 

at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative vote was cast which entitled them to exercise                         % as the voting power of the corporation.

 

x

In a writing signed by all of the

x shareholders

o directors (non-profit amended articles only)

 

o

members who would be entitled to the notice of a meeting or such other proportion not less than a majority as the articles of regulations or bylaws permit.

 

Clause applies if amended box is checked.

 

Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede and take the place of the existing articles of incorporation and all amendments thereto.

 

1


 

All of the following information must be completed if an amended box is checked.

If an amendment box is checked, complete the areas that apply.

 

FIRST:

The name of the corporation is: Akron Management Corp.

 

 

SECOND:

The place in the State of Ohio where its principal office is located is in the City of:

 

 

 

Akron

Summit

 

 

(city, village or township)

(county)

 

 

 

 

THIRD:

The purposes of the corporation are as follows:

 

 

 

 

 

See Exhibit A attached

 

 

 

 

 

 

 

 

 

 

FOURTH:

The number of shares which the corporation is authorized to have outstanding is:

1,000 Common

 

(Does not apply to box (2))

$1.00 par value per share

 

REQUIRED

 

 

 

Must be authenticated

/s/ Ingrid Keiser

 

November 10, 2010

(signed) by an authorized

Authorized Representative

 

Date

representative

 

 

 

(See Instructions)

Ingrid Keiser

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Authorized Representative

 

Date

 

 

 

 

 

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2


 

EXHIBIT A

 

TO

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

AKRON MANAGEMENT CORP.

 

THIRD.  Akron Management Corp. (the “Corporation”) has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as Firestone Country Club, in the City of Akron, State of Ohio (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the General Corporation Law of the State of Ohio.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

1


 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

SEVENTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Ohio, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

EIGHTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH.   The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

TENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Ohio, as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Ohio at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH.  Reserved.

 

THIRTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of

 

2


 

a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors of the Corporation and the sole shareholder of the Corporation by unanimous written consents dated November 9, 2010, pursuant to Section 1701.71 of Ohio General Corporation Law.  These Amended and Restated Articles of Incorporation supersede the Corporation’s existing Articles of Incorporation and all amendments to them.

 

3


 

IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

AKRON MANAGEMENT CORP.

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.4(B) 9 a2202241zex-3_4b.htm EX-3.4(B)

Exhibit 3.4(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

AKRON MANAGEMENT CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Ohio, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

2


 

Section 1.8.     Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

3


 

required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Ohio, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

4


 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications, The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Ohio and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Ohio whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the ease may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers: Election: Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

12


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6,4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership Joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The Fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

14

 


 EX-3.5(A) 10 a2202241zex-3_5a.htm EX-3.5(A)

Exhibit 3.5(a)

 

[State of California Seal]

State of California

 

Secretary of State

 

Bill Jones

 

STATEMENT OF PARTNERSHIP AUTHORITY

 

  Form GP-1

 

IMPORTANT — Read instructions on back before completing form.

 

NAME OF PARTNERSHIP

Aliso Viejo Golf Club Joint Venture, a California general partnership

 

STREET ADDRESS OF CHIEF EXECUTIVE OFFICE

CITY/STATE/COUNTRY

ZIP CODE

6 Upper Newport Plaza

Newport Beach, CA

92660

 

 

 

STREET ADDRESS OF A CALIFORNIA OFFICE, IF ANY

CITY

ZIP CODE

6 Upper Newport Plaza

Newport Beach, CALIFORNIA

92660

 

o  A.  LIST THE FULL NAMES AND MAILING ADDRESSES OF ALL PARTNERS
(ATTACH ADDITIONAL PAGES, IF NECESSARY)

OR:

o  B.  STATE THE FULL NAME AND MAILING ADDRESS OF AN AGENT APPOINTED AND MAINTAINED BY THE PARTNERSHIP WHO WILL MAINTAIN A LIST OF THE NAMES AND MAILING ADDRESSES OF ALL PARTNERS.

 

NAME: Aliso Viejo Golf LP, a California limited partnership

NAME:

 

 

ADDRESS: 6 Upper Newport Plaza

ADDRESS:

 

 

 

 

CITY:

STATE/COUNTRY:

ZIP CODE:

CITY:

Newport Beach

CA

92660

 

 

 

 

 

NAME: LEGAV Corporation, a California corporation

STATE/COUNTRY:

 

 

ADDRESS: P.O. Box 819012

 

 

 

CITY:

STATE/COUNTRY:

ZIP CODE:

ZIP CODE:

Dallas

TX

75381

 

 

 

 

 

NAMES OF ALL PARTNERS AUTHORIZED TO EXECUTE INSTRUMENTS TRANSFERRING REAL PROPERTY HELD IN THE NAME OF THE PARTNERSHIP (ATTACH ADDITIONAL PAGES. IF NECESSARY)

 

PARTNER NAME:

Aliso Viejo Golf LP, a California Limited Partnership and

PARTNER NAME:

PARTNER NAME:

LEGAV Corporation (acting jointly)

PARTNER NAME:

PARTNER NAME:

A California Corporation

PARTNER NAME:

 

OTHER MATTERS, IF ANY: [ATTACH ADDITIONAL PAGES, IF NECESSARY]

 

NUMBER OF PAGES ATTACHED, IF ANY:

 

DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.

 

For Secretary Of State Use

 

 

 

Aliso Viejo Golf LP, a California Limited Partnership

 

File # 301997170004

By:

Glenwood Golf Corporation,

6/16/97

 

 

 

a California corporation,

DATE EXECUTED

 

DOCUMENT # (112)

 

its general partner

 

 

 

 

By:

/s/ Paul N. Donnelly

 

Orange County, Ca.

 

 

 

 

Paul N. Donnelly

 

COUNTY AND STATE EXECUTED

 

 

 

 

President

 

 

 

 

 

 

 

 

 

 

FILED

/s/ Mark Dietz

 

6/12/97

 

In the office of the Secretary of State

SIGNATURE OF PARTNER

 

DATE EXECUTED

 

of the State of California

LEGAV Corporation, A California Corporation

 

 

By:

Mark Dietz, Vice President

 

Dallas, Texas

 

 

TYPE OR PRINT NAME OF PARTNER

COUNTY AND STATE EXECUTED

 

JUN 19 1997

 

 

 

 

 

 

RETURN TO:

 

 

NAME:

McDermott, Will & Emery

 

/s/ Bill Jones

ATTN:

Jill M. Draffin, Esq.

 

BILL JONES, Secretary of State

ADDRESS:

1301 Dove Street, Suite 500

 

 

 


 

 

[State of California Seal]

I hereby certify that the foregoing transcript of 1 page(s) is a full, true and correct copy of the original record in the custody of the California Secretary of State’s office.

 

Date:

NOV 05 2010

 

 

 

 

 

 

/s/ Debra Bowen

 

 

DEBRA BOWEN, Secretary of State

 


 EX-3.5(B) 11 a2202241zex-3_5b.htm EX-3.5(B)

Exhibit 3.5(b)

 

SECOND AMENDMENT TO
COMBINED AMENDMENT TO JOINT VENTURE AGREEMENTS

 

THIS SECOND AMENDMENT TO COMBINED AMENDMENT TO JOINT VENTURE AGREEMENTS is entered into as of this 5th day of August, 2005, by and among LEGAV Corporation, a California corporation (“LEGAV Golf’), GCL Corporation, a California corporation (“GCL”), LEGAV COMMERCIAL PROPERTY CORPORATION, a California corporation (“LEGAV Commercial”), and Emerald Development Group, LLC, a California limited liability company (“Emerald”).

 

WHEREAS, the parties hereto are parties to that certain Combined Amendment to Joint Venture Agreements dated as of January 1, 2004, as amended by the First Amendment to Combined Amendment to Joint Venture dated March 26, 2004 (the “Agreement”);

 

WHEREAS, the parties desire to amend the Agreement in certain respects.

 

NOW, THEREFORE, BE IT AGREED, as follows:

 

1.  Defined Terms. Capitalized terms used herein and not otherwise defined are defined in the Agreement. In the event of any conflict between a definition in the Agreement and this Second Amendment, the meaning in this Second Amendment shall apply.

 

2.  Miscellaneous Changes to the Agreement.

 

a)  Section 6(e) is hereby amended by adding the following at the end thereof: In the event the Shea Release Agreement is included as an exhibit(s) to a purchase and sale agreement with Shea executed by the Joint Ventures (the “PSA Agreement”), then for the purposes of this Section 6(e), the three percent (3%) shall be deemed earned on the date the Deposit becomes “nonrefundable to the purchaser (and such nonrefundability is not being contested by Shea)” as provided in the PSA Agreement. The Shea Incentive Payment shall not be deemed earned nor the preferred return of 8% per annum on the Shea Incentive Payment commence until the Shea Recordation Date or Shea Option Recordation Date as provided in Section 7(b).

 

b)  Section 7(b) of the Agreement is hereby amended by adding the following at the end thereof: “For purposes of this Section 7(b) the Shea Release Agreement shall be deemed to have been executed on (i) the (x) closing of the PSA Agreement and the execution and delivery to the Joint Ventures of the Exhibits attached to the PSA which release the Shea Restrictions or (y) closing, execution and delivery to the Joint Ventures of another agreement with Shea, subject to the approval by the Ventures in accordance with the terms

 


 

of this Agreement, which releases the Shea Restrictions before July 1, 2007 (which date can be extended up to 12 months as provided in Section 13.6 of the Development Agreement, as amended) (collectively, the “Shea Recordation Date”), or (ii) if CCA Venturers, in its sole and absolute discretion, with no obligation, elects to exercise the option to purchase the Shea Release pursuant to the terms of the PSA Agreement (the “Option”), closes the Option and receives the executed documents by Shea to release the Shea Restrictions (the “Shea Option Recordation Date”). Notwithstanding anything to the contrary, in no event will the preferred return of 8% per annum (not compounded) on the Shea Incentive Payment under Section 8(b), accrue or be payable for the period after May 1, 2006, the termination date of the PSA Agreement or such later termination date as agreed to in writing by Shea and the Joint Ventures.

 

c)  Section 7(c) of the Agreement is hereby amended to read in its entirety as follows: “The City has approved the issuance of CFD Bonds in the gross amount of $37,500,000. The projected net proceeds from the CFD Bonds are $29,150,000. Emerald shall be entitled to a special profits interest in the Joint Ventures (the “CFD Incentive Payment”) as follows:

 

(1)  If the Development Property is sold to Shea pursuant to the PSA Agreement, then the CFD Incentive Payment will equal (i) $7,516,250, which represents 35% of the projected net CFD Bond (i.e., $29,150,000) proceeds in excess of $7,675,000, plus (ii) 8% per annum (not compounded) of the amount set forth in clause (i) from April 20, 2005;

 

(2)  if the purchaser of the Development Property is not Shea, but the price is derived in a manner that takes into account the availability to the purchaser of the net proceeds of the CFD Bonds (analogous to how those proceeds were taken into account in the letter of intent with Shea with the same effect to increase the purchase price, then the CFD Incentive Payment will equal (i) $7,516,250, plus (ii) 8% per annum (not compounded) of the amount set forth in clause (i) from April 20, 2005 (the date of the City’s adoption of Notice of Formation of the CFD).

 

(3)  In the event that the Development Property is sold in a manner that results in the benefit to the Joint Ventures from the CFD Bond proceeds being received in stages rather than all at once, the CFD Incentive Payment will be paid on a pro rata basis (based on the ratio of the gross acreage of the portion of the Development Property sold to the total

 

2


 

Development Property, in each case excluding the portion of the Development Property transferred to the City for purposes of a community center) as each portion of the Development Property (other than the community center) is sold. The amount to be paid shall be based on the portion of the Development Property sold at each closing. In the event a portion of the Development Property has been sold prior to the time the CFD Incentive Payment becomes due, the pro rata amounts that would have been due in connection with the sale of that portion shall be paid at the time of the sale of the next portion of the Development Property.”

 

d)       Exhibit E to the Development Agreement and the Agreement is hereby amended to read as set forth on Exhibit E hereto. The distributions reflected on Exhibit E under the heading “Exhibit E-4 Distribution Summary and Exhibit E-5 Profit Distributions and Allocations” will be adjusted only to the extent that the assumptions and calculations set forth thereon relating to actual costs, dates, selling price and terms of sale are different from those reflected on Exhibits E-4 and E-5, and the closing of the sale occurs. The parties agree not to renegotiate the process for determining the distributions to the parties set forth on Exhibits E-4 and E-5; any adjustments shall be subject only to the matters set forth in the sentence above. The parties agree that the Advance Payments (defined below), closing costs associated with the sale of the Development Property, the asset management fee in Section 8(g)(4), legal fees incurred by CCA Venturers or Emerald on the Project (excluding any fees incurred to negotiate the agreement between the parties or from any disputes concerning the Agreement), and the Administrative Fee are Project Expenses.

 

e)       A new Section 8(i) is hereby added to the Agreement to read in its entirety as follows: “Section 8(g)(3) provides that Emerald’s share of the Net Proceeds for Distribution will include a preferred return at the rate of 8% per annum (not compounded) from the date its percentage interest is earned until paid. In the event that the Development Property is sold with a portion of the price being deferred, so Emerald does not, as part of the initial distribution of Available Funds, receive all Net Proceeds for Distribution to which it would be entitled as part of the initial distribution of Available Funds at closing, then Emerald’s share of any remaining Net Proceeds for Distribution will cease to earn the 8% (not compounded), but will continue to accrue a preferred return at the rate of 5% per annum (not compounded), until such time as there are sufficient Available Funds to distribute to Emerald its remaining Percentage Interest of Net Proceeds for Distribution. The payment of the 5% preferred return

 

3


 

on Emerald’s Percentage Interest shall be disbursed first to Emerald on the next distribution prior to the determination of Net Proceeds for Distribution.

 

3.  Changes to Section 9 of the Agreement.

 

Section 9 of the Agreement, which was previously deleted, is hereby added back, to the Agreement and shall read in its entirety as follows:

 

9.       Miscellaneous Allocations and Distributions.

 

a) Concurrently with the execution of the Second Amendment to this Agreement, the CCA Venturers will advance to the Joint Ventures the amount necessary to pay an advance cash payment of the CFD Incentive Fee to Emerald of $500,000, which $500,000 advance cash payment is nonrefundable, and will set aside in an escrow account with a title company reasonably acceptable to both parties an additional $2,000,000 (the “$2,000,000 and $500,000 are collectively the “Advance Payments”). The additional $2,000,000 will be distributed to Emerald at the date the Deposit becomes “nonrefundable to the purchaser (and such nonrefundability is not being contested by Shea)” as provided in the PSA Agreement. The Advance Payments received by Emerald under this section shall be treated as an advance payment of the CFD Incentive Payment otherwise payable under Section 7(c), Section 8(c), and Section 12. Emerald shall not be entitled to the 8% preferred return on the portion of the CFD Incentive Fee paid by the Advance Payments from the date the respective Advance Payments are paid to Emerald. In the event (i) there are not sufficient Available Funds by July 1, 2007 (which date can be extended up to 12 months as provided in Section 13.6 of the Development Agreement, as amended), after payment of the distributions in Section 8(b), to pay the CFD Incentive Payment, then to the extent of the deficiency, or (ii) to the extent of any unearned or overpaid CFD Incentive Payment, up to $2,000,000 of the Advance Payment, shall be refunded by Emerald to the Joint Ventures on or before fifteen (15) days following such date and disbursed directly to the CCA Venturers. If not refunded by Emerald, CCA Venturers may in addition to any other remedy, credit the amount not refunded against any sum due Emerald, pursuant to this Agreement or the Development Agreement.

 

b)  In the event that the Joint Ventures enter into an agreement that provides the Joint Ventures with certain rights to purchase model homes, Emerald, at its expense, will be entitled to purchase one-third of such homes (rounded up if not a whole number, but in no event more than 2) and will be entitled to the first selection of which homes

 

4


 

it wishes to purchase. For example, with regard to the anticipated sale to Shea, Emerald will have the first option to purchase any one of the three model homes in PA 5 and any one of the three model homes in PA 6 on the terms available to the Joint Ventures. In the event that Emerald chooses not to purchase one or both of such model homes, then the CCA Venturers may do so and Emerald will have no interest in those homes. In the event the CCA Venturers elect in writing to not purchase any portion of their share of the model homes, then Emerald may acquire the portion waived and the two (2) rights limitation above shall not be applicable and the CCA Venturers will have no interest in the homes.

 

c)  On or before the first day of operation of the permanent golf clubhouse, James Kelly, the principal of Emerald, will receive one golf membership on the same terms as the Shea Memberships described in Section 18 of the Shea LOI. Specifically, the initiation deposit as well as twenty (20) years of monthly membership dues shall be waived, however Kelly shall be responsible for all charges incurred under the membership. This membership shall be non-assignable.

 

d)  In the event that following the sale of the Development Property, the Joint Ventures are required to pay liquidated damages to the purchaser due to the failure of the Joint Ventures to perform their Post Closing Construction Obligations, as defined in the Amendment to Development Agreement, such damages will be borne solely by CCA Venturers and no such amounts shall be charged in any respect to Emerald.

 

4.  Mutual Release.

 

a)  Each party hereto, for itself, its members, partners, joint venturers, employees, directors, partners, shareholders, successors, assigns, and all other persons claiming through such party (collectively, the “Releasors”), does hereby release, waive, and forever discharge the other parties hereto, its members, partners, joint venturers, employees, directors, partners, shareholders, successors, assigns, and all other persons claiming through such party (collectively, the “Releasees”) from, and does fully waive any obligations of any of the Releasees to the Releasors for, any and all liability, actions, charges, causes of action, demands, damages, or claims for relief, remuneration, sums of money, accounts or expenses (including attorneys’ fees and costs) of any kind whatsoever (each a “Claim”), whether known or unknown or contingent or absolute, which heretofore has been or which hereafter may be suffered or sustained, directly or indirectly, by Releasors for or by reason of any

 

5


 

cause, matter or thing whatsoever relating to or in any way arising out of the transactions relating to this Agreement. This release and waiver does not apply to: (i) any agreement entered into after the date hereof; or (ii) any actions or omissions of Releasees after the date hereof.

 

b)  Each party hereto agrees not to take any step or initiate any proceeding against any person who might be entitled to claim contribution, indemnity or other relief over against the Releasees with respect to any of the matters hereby released by it, and warrants that it has not assigned to any person any right in respect of any of the matters hereby released by it. As used herein, the term “person” shall be broadly interpreted and includes an individual, body corporate, partnership, joint venture, trust, association, unincorporated organization, any governmental or regulatory agency or any entity recognized by law.

 

c)  Each party hereto represents and warrants that such party has not filed any complaint, charge, or lawsuit against the Releasees with any government agency or any court.

 

ALL PARTIES ACKNOWLEDGE THAT THEY ARE FAMILIAR WITH AND VOLUNTARILY WAIVE ANY RIGHT OR BENEFIT ARISING FROM SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA WHICH PROVIDES AS FOLLOWS:

 

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

 

ALL PARTIES WAIVE AND RELINQUISH ANY RIGHT OR BENEFIT THEY HAVE OR MAY HAVE UNDER ANY SIMILAR PROVISION OF THE STATUTORY OR NON-STATUTORY LAW OF ANY JURISDICTION.

 

Emerald:

 

The Joint Ventures:

 

 

 

EMERALD DEVELOPMENT GROUP, LLC,
a California limited liability co.

 

ALISO VIEJO GOLF CLUB JOINT VENTURE,
a California joint venture

 

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

6


 

By:

/s/ James B. Kelly

 

By:

/s/ Douglas T. Howe

 

James B. Kelly, President

 

 

Douglas T. Howe, President

 

 

 

 

 

 

 

 

 

 

 

 

 

ALISO VIEJO COMMERCIAL PROPERTY JOINT VENTURE,
California joint venture

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, President

 

 

 

 

 

 

 

 

GCL CORPORATION

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

 

 

 

 

 

LEGAV CORPORATION

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

 

 

 

 

 

LEGAV COMMERCIAL PROPERTY CORPORATION

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

 

5.  Full Force and Effect. In all other respects, the Agreement shall remain in full force and effect.

 

6.  Counterparts. This document may be executed in multiple counterparts each of which when taken together shall constitute the whole of this document.

 

[Signatures on Following Page]

 

7


 

Executed by the parties as of the date first written above.

 

 

 

Emerald:

 

 

 

 

 

 

EMERALD DEVELOPMENT GROUP, LLC,
a California limited liability company

 

 

 

 

 

 

 

 

 

 

By:

/s/ James B. Kelly

 

 

 

James B. Kelly, President

 

 

 

 

 

 

 

 

 

 

The Joint Ventures:

 

 

 

 

 

 

ALISO VIEJO GOLF CLUB JOINT VENTURE,
a California joint venture

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ALISO VIEJO COMMERCIAL PROPERTY JOINT VENTURE,
a California joint venture

 

 

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

GCL CORPORATION

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

Douglas T. Howe, Vice President

 

8


 

 

 

 

LEGAV CORPORATION

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

LEGAV COMMERCIAL PROPERTY CORPORATION

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

9

 

 

EXHIBIT E-1 — BUDGET

 

Name

 

Aliso Emerald - Developer Partnership

 

 

 

 

Alternate

 

Sell at Final Map & Grading Permit

 

Project Start Date

 

Jan-04

Product

 

502 Paper Lots

 

Project Duration

 

36

File Name

 

EDG CCA - AVGC 502

 

 

 

 

Date

 

Updated 8/3/2005

 

 

 

 

 

FINISHED LOT VALUE

 

175,453,926

 

 

 

 

 

GROSS FINISHED LOT SALES PROCEEDS

 

175,453,926

 

 

 

 

 

Site Development Costs

 

(58,252,508

)

 

 

 

 

CFD Credit

 

29,150,000

 

 

 

 

 

Lot Finishing Costs (Builder Direct Costs that Shea allocates to Site Development)

 

(9,348,887

)

 

 

 

 

PAPER LOT VALUE

 

137,002,531

 

 

 

 

 

Current Asset Value (Negotiated value for previous entitlements)

 

61,777,209

 

 

 

 

 

Value Enhancement (Residual minus Current Asset Value)

 

75,225,322

 

 

 

 

 

Discount to Shea (Equals 25% of value enhancement; Equals 11% of Paper Lot Value)

 

(18,806,331

)

 

 

 

 

Land Price to Shea (Calculated)

 

118,196,201

 

 

 

 

 

Net Lot Revenues

 

118,500,000

 

 

 

 

 

Interest Income (One Year Note secured by Property for 50% of Land Price @ 5%)

 

2,962,500

 

 

 

 

 

SALE PRICE (Net Lot Revenues plus Interest Income)

 

121,462,500

 

0

 

1

 

Close of Escrow Payment

 

59,250,000

 

24

 

1

 

Promissory Note Payment (Due 12 months after Close of Escrow)

 

62,212,500

 

36

 

1

 

ACTUAL SALES PROCEEDS

 

121,462,500

 

 

 

 

 

 

 

Closing Costs (estimated)

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

500,000

 

24

 

1

 

ENTITLEMENTS

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Engineering & Consulting

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

1,400,000

 

12

 

12

 

Entitlement Contingency

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

750,000

 

12

 

12

 

 

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

0

 

1

 

24

 

 

 

 

 

 

 

 

 

 

 

Total Entitlements

 

 

 

 

 

2,800,000

 

 

 

 

 

INDIRECT CONSTRUCTION

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Expenses

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

750,000

 

6

 

18

 

Inspect, Audit, Acctg, Legal, Insurance

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

500,000

 

1

 

23

 

Development Agreement Costs

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

475,000

 

1

 

12

 

Indirect Cost Contingency

 

0

%

0

 

100

%

0

 

 

 

 

 

 

 

250,000

 

18

 

6

 

 

 

 

 

 

 

 

 

 

 

Total Indirect Construction

 

 

 

 

 

1,975,000

 

 

 

 

 

ADMIN FEES & INCENTIVE PYMT

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash Payment - Phase 1a

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

125,000

 

1

 

1

 

Cash Payment - Phase 1b

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

125,000

 

5

 

1

 

Cash Payment - Phase 2

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

125,000

 

12

 

1

 

Cash Payment - Phase 3

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

125,000

 

23

 

1

 

Cash Payment - Phase 4

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

250,000

 

16

 

1

 

Cash Payment - Phase 5

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

250,000

 

23

 

1

 

Asset Management to Owner (accrued to Closing)

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

156,000

 

24

 

1

 

Asset Mngt (monthly through payment of note)

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

78,000

 

25

 

12

 

Due Diligence

 

0

%

0

 

100

%

0

 

 

 

0.00

%

per year

 

75,000

 

1

 

1

 

General & Administrative(1)

 

0

%

0

 

100

%

0

 

 

 

2.00

%

Of Lot Sales

 

1,778,020

 

1

 

36

 

G&A Equalizing Fee(1)

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

591,980

 

36

 

1

 

Advance Dist. #1 - CFD Incentive (2)

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

500,000

 

20

 

1

 

Advance Dist. #2- CFD Incentive (3)

 

0

%

0

 

100

%

0

 

 

 

0.00

%

 

 

2,000,000

 

21

 

1

 

 

 

 

 

 

 

 

 

 

 

Total Admin Payments

 

 

 

 

 

6,179,000

 

 

 

 

 

JOINT VENTURE OBLIGATIONS POST CLOSING:

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Golf Course Improvements(4)

 

0

%

0

 

100

%

0

 

 

 

2,988

 

per lot

 

1,500,000

 

24

 

1

 

Glenwood Memberships for Shea

 

0

%

0

 

100

%

0

 

 

 

996

 

per lot

 

500,000

 

24

 

1

 

 

 

 

 

 

 

 

 

 

 

Total Post Closing Expense

 

 

 

 

 

2,000,000

 

 

 

 

 

 

(1)          The G&A Equalizing Fee is calculated pursuant to Section 2.1 in the Development Agreement as follows: Net Lot Revenues * 2% G&A Fee, less $1,778,020 (originally projected G&A fee based on 36 month schedule and originally projected Net Lot Revenues)

(2)          Advance Distribution #1 - Advance distribution of Emerald’s CFD Incentive Fee - advanced August 2005.

(3)          Advance Distribution #2 - Second advance distribution of Emerald’s CFD Incentive Fee - advanced when Shea deposit becomes non-refundable.

(4)          Projected partnership expense to reconstruct three golf holes.

 

This note applies to all components of Exhibit E, including but not limited to Exhibts E-1 through E-7:

Project Expenses as shown are based on estimates of the final values for same and will be adjusted to reflect the actual amounts at the conclusion of the Project and are subject to final reconciliation and audit.

Preferred Returns as shown are based on anticipated accrual dates (some of which are reflected in the Pro Forma Assumptions) and will be adjusted to reflect the actual accrual dates (i.e. the actual dates of expenditures for Project Expenses and the actual satisfaction of the “execution” of the Shea Release Agreement as provided in Section 6(e) of the Combined Amendment to Joint Venture Agreements, as subsequently amended.

 

 

EXHIBIT E-2 — TOTAL PROJECT CASH FLOW

 

Name

 

Aliso Emerald - Developer Partnership

Alternate

 

Sell at Final Map & Grading Permit

Product

 

502 Paper Lots

File Name

 

EDG CCA - AVGC 502

Date

 

Updated 8/3/2005

 

 

 

PROJECT
TOTAL

 

Jan-2004

 

Jan-2004

 

Mar-2004

 

Apr-2004

 

May-2004

 

Jun-2004

 

Jul-2004

 

Aug-2004

 

Sep-2004

 

Oct-2004

 

Nov-2004

 

Dec-2004

 

 

 

 

 

1

 

2

 

3

 

4

 

5

 

6

 

7

 

8

 

9

 

10

 

11

 

12

 

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SALE PRICE (Net Lot Revenues plus Interest Inco

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

59,250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

62,212,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Sales Commission & Closing

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Closing Costs

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Municipal Fees

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

TOTAL REVENUE

 

121,462,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Closing Costs (estimated)

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ENTITLEMENTS

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Planning & Entitlement

 

650,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

0

 

0

 

Engineering & Consulting

 

1,400,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

116,667

 

Entitlement Contingency

 

750,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

62,500

 

*

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

INDIRECT CONSTRUCTION

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Expenses

 

750,000

 

0

 

0

 

0

 

0

 

0

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

Inspect, Audit, Acctg, Legal, Insurance

 

600,000

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

Development Agreement Costs

 

475,000

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

Indirect Cost Contingency

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ADMIN FEES & INCENTIVE PYMT

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1a

 

125,000

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1b

 

125,000

 

0

 

0

 

0

 

0

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 2

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

125,000

 

Cash Payment - Phase 3

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 4

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 5

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Asset Management to Owner (accrued to Closing)

 

166,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Asset Mngt (monthly through payment of note)

 

78,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Due Diligence

 

75,000

 

75,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

General & Administrative Expenses

 

1,778,020

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

G&A Equalizing Fee

 

591,980

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Advance Dist #1 - CFD Incentive (2)

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Advance Dist #2- CFD Incentive (3)

 

2,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

JOINT VENTURE OBLIGATIONS POST CLOSING:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Golf Course Improvements

 

1,500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Glenwood Memberships for Shea

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

TOTAL PROJECT COSTS

 

13,454,000

 

375,712

 

175,712

 

175,712

 

175,712

 

300,712

 

217,379

 

217,379

 

217,379

 

217,379

 

217,379

 

152,379

 

456,545

 

NET PROJECT CASH FLOW

 

108,008,500

 

(375,712

)

(175,712

)

(175,712

)

(175,712

)

(300,712

)

(217,379

)

(217,379

)

(217,379

)

(217,379

)

(217,379

)

(152,379

)

(456,545

)

CUMULATIVE CASH REQUIREMENTS

 

 

 

375,712

 

551,424

 

727,136

 

902,848

 

1,203,560

 

1,420,938

 

1,638,317

 

1,855,695

 

2,073,074

 

2,290,452

 

2,442,831

 

2,899,376

 

EQUITY CONTRIBUTION

 

10,100,741

 

375,712

 

175,712

 

175,712

 

175,712

 

300,712

 

217,379

 

217,379

 

217,379

 

217,379

 

217,379

 

152,379

 

456,545

 

EQUITY DISTRIBUTION

 

(118,109,241

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

NET EQUITY BALANCE

 

 

 

375,712

 

551,424

 

727,136

 

902,848

 

1,203,560

 

1,420,938

 

1,638,317

 

1,855,695

 

2,073,074

 

2,290,452

 

2,442,831

 

2,899,376

 

 

 

EXHIBIT E-2 — TOTAL PROJECT CASH FLOW

 

Name

 

Aliso Emerald - Developer Partnership

Alternate

 

Sell at Final Map & Grading Permit

Product

 

502 Paper Lots

File Name

 

EDG CCA - AVGC 502

Date

 

Updated 8/3/2005

 

 

 

PROJECT
TOTAL

 

Jan-2005

 

Feb-2005

 

Mar-2005

 

Apr-2005

 

May-2005

 

Jun-2005

 

Jul-2005

 

Aug-2005

 

Sep-2005

 

Oct-2005

 

Nov-2005

 

Dec-2005

 

 

 

 

 

13

 

14

 

15

 

16

 

17

 

18

 

19

 

20

 

21

 

22

 

23

 

24

 

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SALE PRICE (Net Lot Revenues plus Interest Inco

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

59,250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

59,250,000

 

 

 

62,212,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales Commission & Closing

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Closing Costs

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Municipal Fees

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL REVENUE

 

121,462,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

59,250,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Closing Costs (estimated)

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

500,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTITLEMENTS

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Planning & Entitlement

 

650,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Engineering & Consulting

 

1,400,000

 

116,667

 

116,667

 

116,667

 

116,667

 

116,667

 

116,667

 

116,667

 

116,667

 

116,667

 

116,667

 

116,667

 

0

 

Entitlement Contingency

 

750,000

 

62,500

 

62,500

 

62,500

 

62,500

 

62,500

 

62,500

 

62,500

 

62,500

 

62,500

 

62,500

 

62,500

 

0

 

*

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

INDIRECT CONSTRUCTION

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Expenses

 

750,000

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

0

 

Inspect, Audit, Acctg, Legal, Insurance

 

500,000

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

21,739

 

0

 

Development Agreement Costs

 

475,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Indirect Cost Contingency

 

250,000

 

0

 

0

 

0

 

0

 

0

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ADMIN FEES & INCENTIVE PYMT

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1a

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1b

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 2

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 3

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

125,000

 

0

 

Cash Payment - Phase 4

 

250,000

 

0

 

0

 

0

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 5

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

250,000

 

0

 

Asset Management to Owner (accrued to Closing)

 

156,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

156,000

 

Asset Mngt (monthly through payment of note)

 

78,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Due Diligence

 

75,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

General & Administrative Expenses

 

1,778,020

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

G&A Equalizing Fee

 

591,980

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Advance Dist. #1 - CFD Incentive (2)

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

500,000

 

0

 

0

 

0

 

0

 

Advance Dist. #2- CFD Incentive (3)

 

2,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

2,000,000

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JOINT VENTURE OBLIGATIONS POST CLOSING:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Golf Course Improvements

 

1,500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

1,500,000

 

Glenwood Memberships for Shea

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

500,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL PROJECT COSTS

 

13,454,000

 

291,962

 

291,962

 

291,962

 

541,962

 

291,962

 

333,629

 

333,629

 

833,629

 

2,333,629

 

333,629

 

708,629

 

2,705,389

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROJECT CASH FLOW

 

108,008,500

 

(291,962

)

(291,962

)

(291,962

)

(541,962

)

(291,962

)

(333,629

)

(333,629

)

(833,629

)

(2,333,629

)

(333,629

)

(708,629

)

56,544,611

 

CUMULATIVE CASH REQUIREMENTS

 

 

 

3,191,338

 

3,483,300

 

3,775,262

 

4,317,224

 

4,609,186

 

4,942,814

 

5,276,443

 

6,110,071

 

8,443,700

 

8,777,329

 

9,485,957

 

(47,058,653

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CONTRIBUTION

 

10,100,741

 

291,962

 

291,962

 

291,962

 

541,962

 

291,962

 

333,629

 

333,629

 

833,629

 

2,333,629

 

333,629

 

708,629

 

0

 

EQUITY DISTRIBUTION

 

(118,109,241

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(56,544,611

)

NET EQUITY BALANCE

 

 

 

3,191,338

 

3,483,300

 

3,775,262

 

4,317,224

 

4,609,186

 

4,942,814

 

5,276,443

 

6,110,071

 

8,443,700

 

8,777,329

 

9,485,957

 

(47,058,653

)

 

 

EXHIBIT E-2 — T0TAL PROJECT CASH FLOW

 

Name

 

Aliso Emerald - Developer Partnership

Alternate

 

Sell at Final Map & Grading Permit

Product

 

502 Paper Lots

File Name

 

EDG CCA - AVGC 502

Date

 

Updated 8/3/2005

 

 

 

PROJECT
TOTAL

 

Jan-2006

 

Feb-2006

 

Mar-2006

 

Apr-2006

 

May-2006

 

Jun-2006

 

Jul-2006

 

Aug-2006

 

Sep-2006

 

Oct-2006

 

Nov-2006

 

Dec-2006

 

 

 

 

 

25

 

26

 

27

 

28

 

29

 

30

 

31

 

32

 

33

 

34

 

35

 

36

 

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SALE PRICE (Net Lot Revenues plus Interest Inco

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

59,250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

62,212,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

62,212,500

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales Commission & Closing

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Closing Costs

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Municipal Fees

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL REVENUE

 

121,462,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

62,212,500

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Closing Costs (estimated)

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTITLEMENTS

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Planning & Entitlement

 

650,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Engineering & Consulting

 

1,400,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Entitlement Contingency

 

750,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

*

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

INDIRECT CONSTRUCTION

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Expenses

 

750,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Inspect, Audit, Acctg, Legal, Insurance

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Development Agreement Costs

 

475,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Indirect Cost Contingency

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ADMIN FEES & INCENTIVE PYMT

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1a

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1b

 

125,000

 

0

 

0

 

. 0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 2

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 3

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 4

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 5

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Asset Management to Owner (accrued to Closing)

 

156,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Asset Mngt (monthly through payment of note)

 

78,000

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

Due Diligence

 

75,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

General & Administrative Expenses

 

1,778,020

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

G&A Equalizing Fee

 

591,980

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

591,980

 

Advance Dist. #1 - CFD Incentive (2)

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Advance Dist. #2- CFD Incentive (3)

 

2,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JOINT VENTURE OBLIGATIONS POST CLOSING:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Golf Course Improvements

 

1,500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Glenwood Memberships for Shea

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL PROJECT COSTS

 

13,454,000

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

647,869

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROJECT CASH FLOW

 

108,008,500

 

(55,889

)

(55,889

)

(55,889

)

(55,889

)

(55,889

)

(55,889

)

(55,889

)

(55,889

)

(55,889

)

(55,889

)

(55,889

)

61,564,631

 

CUMULATIVE CASH REQUIREMENTS

 

 

 

(47,002,764

)

(46,946,874

)

(46,890,985

)

(46,835,096

)

(46,779,206

)

(46,723,317

)

(46,667,427

)

(46,611,538

)

(46,555,648

)

(46,499,759

)

(46,443,869

)

(108,008,500

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CONTRIBUTION

 

10,100,741

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,869

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

0

 

EQUITY DISTRIBUTION

 

(118,109,241

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(61,564,631

)

NET EQUITY BALANCE

 

 

 

(47,002,764

)

(46,946,874

)

(46,890,985

)

(46,835,096

)

(46,779,206

)

(46,723,317

)

(46,667,427

)

(46,611,538

)

(46,555,648

)

(46,499,759

)

(46,443,869

)

(108,008,500

)

 

 

EXHIBIT E-3 — PREFERRED RETURN CALCULATIONS

 

Name

 

Aliso Emerald - Developer Partnership

 

 

 

Investor

 

INVESTOR

 

CLUBCORP

 

EMERALD

 

TOTAL

 

 

 

 

 

 

 

Alternate

 

Sell at Final Map & Grading Permit

 

 

 

% Investment Capital

 

100

%

0.00

%

0

%

100

%

 

 

 

 

 

 

Product

 

502 Paper Lots

 

 

 

Total Investment

 

10,100,741

 

0

 

467,000

 

10,567,741

 

 

 

 

 

 

 

File Name

 

EDG CCA - AVGC 502

 

 

 

Preferred Return

 

8.00

%

8.00

%

8.00

%

 

 

 

 

 

 

 

 

Date

 

Updated 8/3/2005

 

 

 

 

 

 

 

 

 

 

 

0.00

%

 

 

 

 

 

 

 

 

 

 

614,784

 

Actual Percentage Interest

 

36.50

%

50.00

%

13.50

%

100.00

%

 

 

 

 

 

 

 

 

 

 

 

 

Max Investment Balance

 

9,485,957

 

13,200,000

 

467,000

 

23,152,957

 

 

 

 

 

 

 

 

EQUITY, PREFERRED RETURN,
PROFIT DISTRIBUTIONS

 

 

 

PROJECT
TOTAL

 

Jan-2004

 

Jan-2004

 

Mar-2004

 

Apr-2004

 

May-2004

 

Jun-2004

 

Jul-2004

 

Aug-2004

 

Sep-2004

 

Oct-2004

 

Nov-2004

 

Dec-2004

 

 

 

 

 

 

 

1

 

2

 

3

 

4

 

5

 

6

 

7

 

8

 

9

 

10

 

11

 

12

 

Investor Equity Contributed

 

 

 

10,100,741

 

375,712

 

175,712

 

175,712

 

175,712

 

300,712

 

217,379

 

217,379

 

217,379

 

217,379

 

217,379

 

152,379

 

456,545

 

Emerald Earned Equity Amounts

 

8,713,062

 

0

 

954,229

 

 

 

 

 

 

 

 

 

954,229

 

 

 

 

 

 

 

 

 

2,033,458

 

 

 

Emerald Prior Investment Balance Input

 

 

 

 

 

467,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shea Incentive Payment

 

 

 

13,378,342

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Incentive Payment

 

 

 

7,518,250

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Principal Payments

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance

 

 

 

30,074,654

 

1,421,229

 

0

 

0

 

0

 

0

 

954,229

 

0

 

0

 

0

 

0

 

2,033,458

 

0

 

Total Repayments Available

 

 

 

118,109,241

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AVAILABLE FUNDS

 

 

 

118,109,241

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Project Expenses

 

 

 

10,100,741

 

375,712

 

175,712

 

175,712

 

175,712

 

300,712

 

217,379

 

217,379

 

217,379

 

217,379

 

217,379

 

152,379

 

456,545

 

Clubcorp Project Expense Repayments

 

 

 

10,100,741

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Clubcorp Project Expense Balance

 

 

 

 

 

375,712

 

551,424

 

727,136

 

902,848

 

1,203,560

 

1,420,938

 

1,638,317

 

1,855,695

 

2,073,074

 

2,290,452

 

2,442,831

 

2,899,376

 

Clubcorp Preferred Return - EARNED

 

 

 

563,218

 

 

 

2,505

 

3,676

 

4,848

 

6,019

 

8,024

 

9,473

 

10,922

 

12,371

 

13,820

 

15,270

 

16,286

 

Clubcorp Preferred Return - PAID

 

 

 

563,218

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Clubcorp Preferred Return Balance

 

 

 

 

 

0

 

2,505

 

6,181

 

11,028

 

17,047

 

25,071

 

34,544

 

45,466

 

57,838

 

71,658

 

86,928

 

103,213

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Land Contribution

 

 

 

13,200,000

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Repayments

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Balance

 

 

 

 

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

ClubCorp Preferred Return - EARNED

 

 

 

2,112,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

ClubCorp Preferred Return - PAID

 

 

 

2,112,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Preferred Return Balance

 

 

 

 

 

88,000

 

176,000

 

264,000

 

352,000

 

440,000

 

528,000

 

616,000

 

704,000

 

792,000

 

880,000

 

968,000

 

1,056,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Earned Equity (For Interest Calculation Only)

 

 

 

8,713,062

 

954,229

 

0

 

0

 

0

 

0

 

954,229

 

0

 

0

 

0

 

0

 

2,033,458

 

0

 

Emerald Earned Equity Repayment

 

 

 

8,713,062

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Earned Equity Balance

 

 

 

 

 

954,229

 

954,229

 

954,229

 

954,229

 

954,229

 

1,908,458

 

1,908,458

 

1,908,458

 

1,908,458

 

1,908,458

 

3,941,917

 

3,941,917

 

Emerald Preferred Return - EARNED

 

 

 

492,338

 

 

 

6,362

 

6,362

 

6,362

 

6,362

 

6,362

 

12,723

 

12,723

 

12,723

 

12,723

 

12,723

 

26,279

 

Emerald Preferred Return - PAID

 

 

 

492,338

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

6,362

 

12,723

 

19,085

 

25,446

 

31,808

 

44,531

 

57,254

 

69,977

 

82,700

 

95,423

 

121,702

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

467,000

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance Repayment

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance

 

 

 

 

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

Emerald Preferred Return - EARNED

 

 

 

74,720

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

Emerald Preferred Return - PAID

 

 

 

74,720

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

3,113

 

6,227

 

9,340

 

12,453

 

15,567

 

18,680

 

21,793

 

24,907

 

28,020

 

31,133

 

34,247

 

37,360

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Shea Incentive Balance Input

 

 

 

13,378,342

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Payment

 

 

 

13,378,342

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald CFD Incentive Balance Input

 

 

 

7,516,250

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Payment

 

 

 

7,516,250

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Balance(1)

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

347,533

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

347,533

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Preferred Return @ 5% on Balance Outstanding(4)

 

 

 

408,488

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROCEEDS FOR DISTRIBUTION

 

 

 

71,948,611

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total ClubCorp Percentage Interest

 

86.5

%

63,588,891

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Emerald Percentage Interest (2)

 

13.5

%

8,713,062

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

(1)                     Emerald CFD Incentive Balance reduced by $500,000 advance distribution in August 2005 and $2,000,000 advance deposit in September 2005 with preferred return reduced proportionally.

(2)                     Emerald Percentage Interest equals 13.5% of Net Proceeds for Distributions less $1,000,000 in prior Milestone payments.

(3)                     Cells highlighted in yellow signify hardcoded formulas to account for advance distributions of CFD Incentive.

(4)                     Emerald Preferred Return on Percentage Interest proceeds not paid at Close of Escrow accrue 5% interest until payment of Promissory Note estimated 12/06.

 

 

Name

 

Aliso Emerald - Developer Partnership

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Alternate

 

Sell at Final Map & Grading Permit

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Product

 

502 Paper Lots

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

File Name

 

EDG CCA-AVGC 502

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date

 

Updated 8/3/2005

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

614,784

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY, PREFERRED RETURN,
PROFIT DISTRIBUTIONS

 

 

 

PROJECT
TOTAL

 

Jan-2005

 

Feb-2005

 

Mar-2005

 

Apr-2005

 

May-2005

 

Jun-2005

 

Jul-2005

 

Aug-2005

 

Sep-2005

 

Oct-2005

 

Nov-2005

 

Dec-2005

 

 

 

 

 

 

 

13

 

14

 

15

 

16

 

17

 

18

 

19

 

20

 

21

 

22

 

23

 

24

 

Investor Equity Contributed

 

 

 

10,100,741

 

291,962

 

291,962

 

291,962

 

541,962

 

291,962

 

333,629

 

333,629

 

833,629

 

2,333,629

 

333,629

 

708,629

 

0

 

Emerald Earned Equity Amounts

 

8,713,062

 

0

 

 

 

 

 

829,229

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

829,229

 

3,112,687

 

Emerald Prior Investment Balance Input

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shea Incentive Payment

 

 

 

13,378,342

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13,378,342

 

CFD Incentive Payment

 

 

 

7,516,250

 

 

 

 

 

 

 

7,516,250

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Principal Payments

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance

 

 

 

30,074,654

 

0

 

0

 

829,229

 

7,516,250

 

0

 

0

 

0

 

0

 

0

 

0

 

829,229

 

16,491,029

 

Total Repayments Available

 

 

 

118,109,241

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

56,544,611

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AVAILABLE FUNDS

 

 

 

118,109,241

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

56,544,611

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Project Expenses

 

 

 

10,100,741

 

291,962

 

291,962

 

291,962

 

541,962

 

291,962

 

333,629

 

333,629

 

833,629

 

2,333,629

 

333,629

 

708,629

 

0

 

Clubcorp Project Expense Repayments

 

 

 

10,100,741

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

9,485,957

 

Clubcorp Project Expense Balance

 

 

 

 

 

3,191,338

 

3,483,300

 

3,775,262

 

4,317,224

 

4,609,186

 

4,942,814

 

5,276,443

 

6,110,071

 

8,443,700

 

8,777,329

 

9,485,957

 

0

 

Clubcorp Preferred Return - EARNED

 

 

 

563,218

 

19,329

 

21,276

 

23,222

 

25,168

 

28,781

 

30,728

 

32,952

 

35,176

 

40,734

 

56,291

 

56,516

 

63,240

 

Clubcorp Preferred Return - PAID

 

 

 

563,218

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

538,627

 

Clubcorp Preferred Return Balance

 

 

 

 

 

122,542

 

143,818

 

167,040

 

192,208

 

220,990

 

251,718

 

284,670

 

319,846

 

360,580

 

416,871

 

475,387

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Land Contribution

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Repayments

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

13,200,000

 

ClubCorp Land Balance

 

 

 

 

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

0

 

ClubCorp Preferred Return - EARNED

 

 

 

2,112,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

ClubCorp Preferred Return - PAID

 

 

 

2,112,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

2,112,000

 

ClubCorp Preferred Return Balance

 

 

 

 

 

1,144,000

 

1,232,000

 

1,320,000

 

1,408,000

 

1,496,000

 

1,584,000

 

1,672,000

 

1,760,000

 

1,848,000

 

1,936,000

 

2,024,000

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Earned Equity (For Interest Calculation Only)

 

 

 

8,713,062

 

0

 

0

 

829,229

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

829,229

 

3,112,687

 

Emerald Earned Equity Repayment

 

 

 

8,713,062

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

8,713,062

 

Emerald Earned Equity Balance

 

 

 

 

 

3,941,917

 

3,941,917

 

4,771,146

 

4,771,146

 

4,771,146

 

4,771,146

 

4,771,146

 

4,771,146

 

4,771,146

 

4,771,146

 

5,600,375

 

0

 

Emerald Preferred Return - EARNED

 

 

 

492,338

 

26,279

 

26,279

 

26,279

 

31,808

 

31,808

 

31,808

 

31,808

 

31,808

 

31,808

 

31,808

 

31,808

 

37,336

 

Emerald Preferred Return - PAID

 

 

 

492,338

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

492,338

 

Emerald Preferred Return Balance

 

 

 

 

 

147,982

 

174,261

 

200,541

 

232,348

 

264,156

 

295,964

 

327,771

 

359,579

 

391,387

 

423,194

 

455,002

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance Repayment

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

467,000

 

Emerald Prior Investment Balance

 

 

 

 

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

0

 

Emerald Preferred Return - EARNED

 

 

 

74,720

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

Emerald Preferred Return - PAID

 

 

 

74,720

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

74,720

 

Emerald Preferred Return Balance

 

 

 

 

 

40,473

 

43,587

 

46,700

 

49,813

 

52,927

 

56,040

 

59,153

 

62,267

 

65,380

 

68,493

 

71,607

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Shea Incentive Balance Input

 

 

 

13,378,342

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

13,378,342

 

Emerald Shea Incentive Payment

 

 

 

13,378,342

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

13,378,342

 

Emerald Shea Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald CFD Incentive Balance Input

 

 

 

7,516,250

 

0

 

0

 

0

 

7,516,250

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Payment

 

 

 

7,516,250

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

500,000

 

2,000,000

 

0

 

0

 

5,016,250

 

Emerald CFD Incentive Balance (1)

 

 

 

 

 

0

 

0

 

0

 

7,516,250

 

7,516,250

 

7,516,250

 

7,516,250

 

7,016,250

 

5,016,250

 

5,016,250

 

5,016,250

 

0

 

Emerald Preferred Return - EARNED

 

 

 

347,533

 

0

 

0

 

0

 

0

 

50,108

 

50,108

 

50,108

 

50,108

 

46,775

 

33,442

 

33,442

 

33,442

 

Emerald Preferred Return - PAID

 

 

 

347,533

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

347,533

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

50,108

 

100,217

 

150,325

 

200,433

 

247,208

 

280,650

 

314,092

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Preferred Return @ 5% on Balance Outstanding (4)

 

 

 

408,488

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROCEEDS FOR DISTRIBUTION

 

 

 

71,948,611

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

11,431,844

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total ClubCorp Percentage Interest

 

86.5

%

63,588,891

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

9,888,545

 

 

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Emerald Percentage Interest (2)

 

13.5

%

8,713,062

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

1,543,299

 

 

(1)                     Emerald CFD Incentive Balance reduced by $500,000 advance distribution in August [Illegible]

(2)                     Emerald Percentage Interest equals 13.5% of Net Proceeds for Distributions less $1 [Illegible]

(3)                     Cells highlighted in yellow signify hardcoded formulas to account for advance distributed [Illegible]

(4)                     Emerald Preferred Return on Percentage Interest proceeds not paid at Close of Esc [Illegible]

 

 

EXHIBIT E-3 – PREFERRED RETURN CALCULATIONS

 

 

 

 

 

EXHIE

 

 

 

 

 

Name

 

Aliso Emerald - Developer Partnership

 

 

Alternate

 

Sell at Final Map & Grading Permit

 

 

Product

 

502 Paper Lots

 

 

File Name

 

EDG CCA-AVGC 502

 

 

Date

 

Updated 8/3/2005

 

 

 

 

 

 

614,784

 

 

 

 

 

 

EQUITY, PREFERRED RETURN, PROFIT DISTRIBUTIONS

 

 

 

PROJECT
TOTAL

 

Jan-2006

 

Feb-2006

 

Mar-2006

 

Apr-2006

 

May-2006

 

Jun-2006

 

Jul-2006

 

Aug-2006

 

Sep-2006

 

Oct-2006

 

Nov-2006

 

Dec-2006

 

 

 

 

 

 

 

25

 

26

 

27

 

28

 

29

 

30

 

31

 

32

 

33

 

34

 

35

 

36

 

Investor Equity Contributed

 

 

 

10,100,741

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

0

 

Emerald Earned Equity Amounts

 

8,713,062

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shea Incentive Payment

 

 

 

13,378,342

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Incentive Payment

 

 

 

7,516,250

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Principal Payments

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance

 

 

 

30,074,654

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Repayments Available

 

 

 

118,109,241

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

61,584,631

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AVAILABLE FUNDS

 

 

 

118,109,241

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

61,564,631

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Project Expenses

 

 

 

10,100,741

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

0

 

Clubcorp Project Expense Repayments

 

 

 

10,100,741

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

614,784

 

Clubcorp Project Expense Balance

 

 

 

 

 

55,889

 

111,779

 

167,668

 

223,558

 

279,447

 

335,337

 

391,226

 

447,116

 

503,005

 

558,894

 

614,784

 

0

 

Clubcorp Preferred Return - EARNED

 

 

 

583,218

 

0

 

373

 

745

 

1,118

 

1,490

 

1,863

 

2,236

 

2,608

 

2,981

 

3,353

 

3,726

 

4,099

 

Clubcorp Preferred Return - PAID

 

 

 

583,218

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

24,591

 

Clubcorp Preferred Return Balance

 

 

 

 

 

0

 

373

 

1,118

 

2,236

 

3,726

 

5,589

 

7,825

 

10,433

 

13,413

 

16,767

 

20,493

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Land Contribution

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Repayments

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Preferred Return - EARNED

 

 

 

2,112,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Preferred Return - PAID

 

 

 

2,112,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Earned Equity (For Interest Calculation Only)

 

 

 

8,713,062

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Earned Equity Repayment

 

 

 

8,713,082

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Earned Equity Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

492,338

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

492,338

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance Repayment

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

74,720

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

74,720

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Shee Incentive Balance Input

 

 

 

13,378,342

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Payment

 

 

 

13,378,342

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald CFD Incentive Balance Input

 

 

 

7,516,250

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Payment

 

 

 

7,516,250

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Balance(1)

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

347,533

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

347,533

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Preferred Return @ 5% on Balance Outstanding(4)

 

 

 

408,488

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROCEEDS FOR DISTRIBUTION

 

 

 

71,948,611

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

60,925,255

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total ClubCorp Percentage Interest

 

86.5

%

63,588,891

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

52,700,346

 

 

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Emerald Percentage Interest(2)

 

13.5

%

8,713,062

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

8,224,809

 

 

(1)                     Emerald CFD Incentive Balance reduced by $500,000 advance distribution in August [Illegible]

 

(2)                     Emerald Percentage Interest equals 13.5% of Net Proceeds for Distributions less $1 [Illegible]

 

(3)                     Cells highlighted in yellow signify hardcoded formulas to account for advance distributed [Illegible]

 

(4)                     Emerald Preferred Return on Percentage Interest proceeds not paid at Close of Esc [Illegible]

 

 

EXHIBIT E-4 - DISTRIBUTION SUMMARY
Calculations based on JV & Development Agreement Amendments dated August 2005

 

Incentive Payment Calculations

 

CFD Incentive

 

 

 

 

 

Shea Incentive

 

 

 

 

Total Bond Proceeds

 

29,150,000

 

 

 

Tentative Net Proceeds for Distribution

 

85,326,953

 

Incentive Hurdle

 

(7,675,000

)

 

 

Incentive Hurdle

 

(40,732,480

)

Proceeds in excess of Hurdle

 

21,475,000

 

 

 

Proceeds in excess of Hurdle

 

44,594,473

 

Percentage to Emerald

 

35

%

 

 

Percentage to Emerald

 

30

%

CFD Incentive Payment

 

7,516,250

 

 

 

Shea Incentive Payment

 

13,378,342

 

 

Profit Distributions

 

 

 

 

 

 

 

Emerald

 

CCA

 

Advance Distribution on CFD Incentive to Emerald funded by CC, [Illegible]

 

2,500,000

 

 

 

2,500,000

 

(2,500,000

)

AVAILABLE FUNDS

 

118,109,241

 

 

 

 

 

 

 

Clubcorp Project Expense Repayments

 

10,100,741

 

 

 

 

 

10,100,741

 

Clubcorp Preferred Return - PAID

 

563,218

 

 

 

 

 

563,218

 

ClubCorp Stipulated Land Payment

 

13,200,000

 

 

 

 

 

13,200,000

 

ClubCorp Preferred Return - PAID

 

2,112,000

 

 

 

 

 

2,112,000

 

Emerald Prior Investment Balance Repayment

 

467,000

 

 

 

467,000

 

 

 

Emerald Preferred Return - PAID

 

74,720

 

 

 

74,720

 

 

 

Emerald Preferred Return on Balance Outstanding(3)

 

900,826

 

 

 

900,826

 

 

 

Estimated Available Funds After Return of Capital

 

90,690,736

 

 

 

 

 

 

 

Less: CFD Payment (less advance distribution of $2.5M)

 

5,016,250

 

 

 

5,016,250

 

 

 

Less: CFD Preferred Return

 

347,533

 

 

 

347,533

 

 

 

Tentative Net Proceeds for Distribution

 

85,326,953

 

 

 

 

 

 

 

Less: Shea Incentive Payment

 

13,378,342

 

 

 

13,378,342

 

 

 

Less: Shea Incentive Preferred Return

 

—

 

 

 

—

 

 

 

Net Proceeds for Distribution

 

71,948,611

 

 

 

 

 

 

 

Emerald’s Share (Less $1M in Milestone Payments)

 

8,713,062

 

 

 

8,713,062

 

 

 

ClubCorp’s Share

 

63,235,549

 

63,235,549

 

 

 

63,235,549

 

Total Distribution

 

 

 

 

 

31,397,734

 

86,711,508

 

Percentage Distribution v. Net Proceeds for Distribution

 

30.27

%

69.73

%

 

(1)                     Project Expenses shall include entitlement costs, transaction closing costs, remaining Milestone Payments, remaining G&A Payments and post closing obligations.

(2)                     Assumes Emerald receives two advance distributions on the CFD Incentive Fee totaling $2,500,000 pursuant to Section 9.a of the Second Amendment to the JV Agreement.

(3)                     Emerald’s balance of Percentage Interest distributions accrue 8% preferred return prior to close of escrow and then
a 5% preferred return until Note is paid 12 months after close.

 

Project Expenses as shown are based on estimates of the final values for same and will be adjusted to reflect the actual amounts at the conclusion of the Project and are subject to final reconciliation and audit.

 

Preferred Returns as shown are based on anticipated accrual dates (some of which are reflected in the Pro Form Assumptions) and will be adjusted to reflect the actual accrual dates (i.e. the actual dates of expenditures for Project Expenses and the actual satisfaction of the “execution” of the Shea Release Agreement as provided in Section 6(e) of the Combined Amendment to Joint Venture Agreements, as subsequently amended).

 


 

Exhibit E-5 – Profit Distributions and Allocations

 

Aliso Viejo

Legav/Emerald Development

Shea Transaction Projected Proceeds Allocation, Assuming Close of Escrow on 12/31/05

8/9/2005

 

CFD Incentive Payment (Excl Preferred Return calc)

 

 

Shea Incentive Payment (Excl Preferred Return calc)

 

 

 

 

 

 

Total Bond Proceeds

 

29,150,000

 

 

Tentative Net Proceeds Avail for Distribution

 

85,326,953

 

Incentive Hurdle

 

(7,675,000

)

 

Incentive Hurdle

 

(40,732,480

)

Proceeds in excess of Hurdle

 

21,475,000

 

 

Proceeds in excess of Hurdle

 

44,594,473

 

Percentage to Emerald

 

35

%

 

Percentage to Emerald

 

30

%

CFD Incentive Payment

 

7,516,250

 

 

Shea Incentive Payment

 

13,378,342

 

“Tentative Net Proceeds Available for Distribution”

 

 

85,326,953

 

—

 

 

 

 

Total Proceeds less Joint Venture Costs, including Project Expenses, less Return of Capital less Balance Due on CFD Payment to Emerald

 

Shea Incentive Payment Calculation: (Tentative Net Proceeds Available for Distribution less $40,732,480) x 30%

 

Cash Receipts

 

12/31/2005

 

12/31/2006

 

Total

 

 

 

Shea Earnest Money

 

1,000,000

 

 

 

1,000,000

 

 

 

Shea Note Payments

 

58,250,000

 

59,250,000

 

117,500,000

 

 

 

Gross Sales Proceeds

 

59,250,000

 

59,250,000

 

118,500,000

 

 

 

Shea Interest @ 5%

 

 

 

2,962,500

 

2,962,500

 

 

 

Total Proceeds Including Interest

 

59,250,000

 

62,212,500

 

121,462,500

 

 

 

 

 

 

 

 

 

 

 

 

 

Less Joint Venture Costs Paid from Proceeds:

 

 

 

 

 

 

 

 

 

Accrued Project Expenses (2)

 

205,389

 

 

 

205,389

 

 

 

Accured Project Expenses (3)

 

 

 

647,869

 

647,869

 

 

 

Transaction Closing Costs (Estimate)

 

500,000

 

 

 

500,000

 

 

 

Golf Course Improvements

 

1,500,000

 

 

 

1,500,000

 

 

 

Shea Memberships

 

500,000

 

 

 

500,000

 

 

 

Total Joint Venture Costs

 

2,705,389

 

647,869

 

3,353,259

 

 

 

 

 

 

 

 

 

 

 

 

 

Available Funds

 

56,544,611

 

61,564,631

 

118,109,241

 

 

 

 

 

 

 

 

 

 

 

 

 

Distribution Priority per Section 8 to Joint Venture Agreement, as amended:

 

 

 

 

 

 

 

 

 

Return of Capital

 

 

 

 

 

 

 

 

 

Legav Project Expense Repayment

 

9,485,957

 

614,784

 

10,100,741

 

 

 

Legav Project Expense Preferred Return @ 8%

 

538,627

 

24,591

 

563,218

 

 

 

Legav Stipulated Land Payment

 

13,200,000

 

 

 

13,200,000

 

 

 

Legav Preferred Return Payment @ 8%

 

2,112,000

 

 

 

2,112,000

 

 

 

Emerald Prior Investment Balance

 

467,000

 

 

 

467,000

 

 

 

Emerald Preferred Return Payment @ 8% (Prior)

 

74,720

 

 

 

74,720

 

 

 

Emerald Preferred Return Payment @ 8%/5% (Unearned)

 

492,338

 

408,488

 

900,826

 

 

 

Total Return of Capital

 

26,370,641

 

1,047,863

 

27,418,505

 

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

Shea Incentive Payment to Emerald

 

13,378,342

 

0

 

13,378,342

 

 

 

Shea Incentive Preferred Return

 

—

 

0

 

—

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Incentive Payment to Emerald - Balance Due

 

5,016,250

 

 

 

5,016,250

 

 

 

CFD Incentive Preferred Return @ 8%

 

347,533

 

 

 

347,533

 

 

 

Net Proceeds for Distribution

 

11,431,844

 

60,516,767

 

71,948,611

 

 

 

 

 

 

 

 

 

 

 

 

 

Distribution to Emerald (Net of Equity Pre-Payments)

 

543,299

 

8,169,764

 

8,713,062

 

12.1

%

Distribution to Legav

 

10,888,545

 

52,347,004

 

63,235,549

 

87.9

%

 


 

(1)          Project Expenses as shown are based on estimates of the final values for same and will be adjusted ro reflect the actual amounts at the conclusion of the Project and are subject to final reconciliation and audit.

Preferred Returns as shown are based on anticipated accrual dates (some of which are reflected in the Pro Forma Assumptions) and will be adjusted to reflect the actual accrual dates (I.e. the actual dates of expenditures for Project Expenses and the actual satisfaction of the “execution” of the Shea Release Agreement as provided in Section 6(e) of the Combined Amendment to Joint Venture Agreements, as subsequently amended).

(2)          Includes payment of Asset Management fee to Owner accrued from start of project to Close of Escrow and Administrative Fee payable to Developer for the month of December 2005

(3)          Includes payment of G&A Reconciliation Fee payable to Developer and Administrative Fee payable to Developer for the month of December 2006

(4)          Payments to Developer below do not include any Administrative Fees or Cash Payments previously funded by Legav, unless noted.

 

Summary of Transaction(4)

 

 

 

 

 

 

 

 

 

Total Payments to Emerald - Shea Close of Escrow & Note Pmt

 

20,319,482

 

8,578,252

 

28,897,734

 

23.3

%

Total Payments to Emerald - Advance Payments Funded by Legav

 

2,500,000

 

—

 

2,500,000

 

2.0

%

Total JV Costs Paid from Proceeds

 

2,705,389

 

647,869

 

3,353,259

 

 

 

Total Payments to Legav

 

36,225,129

 

52,986,379

 

89,211,508

 

72.0

%

Total

 

61,750,000

 

62,212,500

 

123,962,500

 

 

 

Less:

 

 

 

 

 

 

 

 

 

Variance - Advance Payments Funded by Legav

 

2,500,000

 

—

 

2,500,000

 

 

 

Total Proceeds Including Interest from Sale to Shea

 

59,250,000

 

62,212,500

 

121,462,500

 

 

 

 

 

 

2004

 

2005

 

2006

 

 

 

Legav Project Funding

 

 

 

 

 

 

 

 

 

Beginning Balance

 

0

 

2,899,376

 

—

 

 

 

Additions During Period

 

2,899,376

 

6,586,581

 

614,784

 

 

 

Repayments During Period

 

—

 

9,485,957

 

614,784

 

 

 

Ending Balance

 

2,899,376

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

 

 

Legav Preferred Return

 

 

 

 

 

 

 

 

 

Beginning Balance

 

0

 

103,213

 

—

 

 

 

Additions During Period

 

103,213

 

435,413

 

24,591

 

 

 

Repayments During Period

 

—

 

538,627

 

24,591

 

 

 

Ending Balance

 

103,213

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

 

 

Estimated Net Proceeds Avail. For Dist.

 

71,948,611

 

71,948,611

 

71,948,611

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Equity

 

 

 

 

 

 

 

 

 

Emerald Equity Prepayments

 

375,000

 

625,000

 

—

 

 

 

Cumulative Emerald Equity Prepayments

 

375,000

 

1,000,000

 

1,000,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity %ages Earned

 

6.0

%

7.5

%

0.0

%

13.5

%

Cumulative Equity %ages Earned

 

6.0

%

13.5

%

13.5

%

13.5

%

Estimated Equity %age Paid

 

0.5

%

1.4

%

1.4

%

3.3

%

Equity %age Accrued

 

5.5

%

12.1

%

n/a

 

 

 

Emerald’s Profit Distribution Reduction

 

375,000

 

1,000,000

 

1,000,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity Accrued During Period

 

3,941,917

 

8,713,062

 

 

 

 

 

Equity Distributions at Close of Escrow

 

 

 

543,299

 

 

 

 

 

Ending Equity

 

 

 

8,169,764

 

 

 

 

 

Preferred Return on Accrued Equity

 

121,702

 

370,635

 

408,488

 

 

 

Preferred Return Rate on Accrued Equity

 

8

%

8

%

5

%

 

 

 

(1)                     Project Expenses as shown are based on estimates of the final values for same and will be adjusted ro reflect the actual amounts at the conclusion of the Project and are subject to final reconciliation and audit.

Preferred Returns as shown are based on anticipated accrual dates (some of which are reflected in the Pro Forma Assumptions) and will be adjusted to reflect the actual accrual dates (I.e. the actual dates of expenditures for Project Expenses and the actual satisfaction of the “execution” of the Shea Release Agreement as provided in Section 6(e) of the Combined Amendment to Joint Venture Agreements, as subsequently amended).

(2)       Includes payment of Asset Management fee to Owner accrued from start of project to Close of Escrow and Administrative Fee payable to Developer for the month of December 2005

(3)       Includes payment of G&A Reconciliation Fee payable to Developer and Administrative Fee payable to Developer for the month of Dec. 2006.

(4)       Payments to Developer below do not include any Administrative Fees or Cash Payments previously funded by Legav unless noted.

(5)       Circular reference errors in the electronic version of this Exhibits can be rectified by going to Tools/Options/Calculations and setting Iterations at 250.

 


 

EXHIBIT E-6

 

PROFIT DISTRIBUTIONS & PRIORITY OF ALLOCATIONS WORKSHEET(1)

 

Purchase Price

 

118,500,000

 

 

 

 

 

% at Close of Escrow

 

50

%

 

 

 

 

Cash at Close of Escrow

 

59,250,000

 

 

 

 

 

Interest Income

 

2,962,500

 

 

 

 

 

Cash at Payment of Promissory Note (1 year after COE)

 

62,212,500

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Check Math E-4 v. E-5

 

 

 

 

 

Exhibit E-5

 

Variance to E-4

 

Distributions from Close of Escrow Funds (assumes 12/05 Closing)

 

 

 

 

 

 

 

Proceeds at Close of Escrow

 

59,250,000

 

 

 

 

 

Joint Venture Costs paid from Proceeds

 

2,705,389

 

 

 

 

 

CCA Capital Repayment including Stipulated Land Payment

 

25,336,584

 

25,336,584

 

0

 

Emerald Prior Investment Balance

 

541,720

 

 

 

 

 

Emerald Preferred Return @ 8% on Balance Outstanding

 

492,338

 

 

 

 

 

Available Funds After Return of Capital

 

30,173,969

 

 

 

 

 

CFD Incentive and Shea Incentive (less $2.5M advance distribution)

 

18,742,125

 

 

 

 

 

Net Proceeds for Distribution

 

11,431,844

 

11,431,844

 

0

 

Emerald Percentage Interest

 

13.5

%

 

 

 

 

Percentage Interest Payment to Emerald (less $1M in milestone payments)

 

543,299

 

543,299

 

0

 

Balance of Available Funds to ClubCorp

 

10,888,545

 

10,888,545

 

0

 

Total Close of Escrow Funds to Emerald

 

20,319,482

 

20,319,482

 

0

 

Total Close of Escrow Funds to ClubCorp

 

36,225,129

 

36,225,129

 

0

 

 

 

 

 

 

 

 

 

Distributions from Promissory Note Funds (assumes Note pay-off 12/06)

 

 

 

 

 

 

 

Proceeds at Payment of Promissory Note (1 year after COE)

 

62,212,500

 

62,212,500

 

0

 

Joint Venture Costs paid from Proceeds

 

647,869

 

647,869

 

0

 

CCA Capital Repayment including Stipulated Land Payment

 

1,047,863

 

 

 

 

 

Net Proceeds for Distribution

 

60,516,767

 

60,516,767

 

0

 

Emerald Percentage Interest

 

13.5

%

 

 

(0

)

Percentage Interest Payment - Initial Balance

 

8,169,764

 

8,169,764

 

0

 

Preferred Return @ 5%

 

408,488

 

408,488

 

0

 

Percentage Interest Payment to Emerald (less previous payment plus pref @ 5%)

 

8,578,252

 

8,578,252

 

0

 

Balance of Available Funds to ClubCorp

 

51,938,515

 

51,938,515

 

0

 

 

 

8,578,252

 

 

 

 

 

 

 

52,986,379

 

52,986,379

 

0

 

 

 

 

 

 

 

 

 

Total Distribution of Proceeds

 

 

 

 

 

 

 

Total Distributions to Emerald Including CFD Prepayment

 

31,397,734

 

31,397,734

 

0

 

Total Distributions to ClubCorp

 

86,711,508

 

86,711,508

 

0

 

Total Joint Venture Costs paid from Proceeds

 

3,353,259

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Project Distributions

 

121,462,500

 

121,462,500

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

31,397,734

 

0

 

 

 

 

 

86,711,508

 

0

 

 

(1)                     Payments shown in descending order of priority pursuant to Amended JV Agreements dated August, 2005.

(2)                     Project Expenses and Preferred Returns are based on estimates.

Final reconciliation at close of escrow will analyze actual timing and amount of Expenses.

 

Project Expenses as shown are based on estimates of the final values for same and will be adjusted to reflect the actual amounts at the conclusion of the Project and are subject to final reconciliation and audit.

Preferred Returns as shown are based on anticipated accrual dates (some of which are reflected in the Pro Form Assumptions) and will be adjusted to reflect the actual accrual dates (i.e. the actual dates of expenditures for Project Expenses and the actual satisfaction of the “execution” of the Shea Release Agreement as provided in Section 6(e) of the Combined Amendment to Joint Venture Agreements, as subsequently amended).

 

 

EXHIBIT E-7 - Developer Percentage Interest Calculations

 

Emerald Percentage Interest & Prior Investment Balance Assumptions

 

 

Projected Net Distributable Profits

 

71,948,611

 

 

 

 

Phase

 

Trigger Event for Percentage Interest
Earned by Developer

 

Percentage

 

Percentage
Interest Earned

 

Cash Payment

 

Credit to Prior
Investment
Balance

 

Estimated
Completion Dates
(1)

 

Percent of Cash
Payment v.
Interest Earned

 

 

 

Pre-agreement Investment Credit

 

 

 

 

 

 

 

467,000

 

January-04

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Phase 1.a

 

General Plan Presentation

 

1.5

%

1,079,229

 

125,000

 

954,229

 

January-04

 

12

%

Phase 1.b

 

General Plan Certification

 

1.5

%

1,079,229

 

125,000

 

954,229

 

June-04

 

12

%

Phase 2

 

Development Agreement Approval

 

3.0

%

2,158,458

 

125,000

 

2,033,458

 

November-04

 

6

%

Phase 3

 

Shea Deed Restriction Release

 

3.0

%

2,158,458

 

125,000

 

2,033,458

 

November-05

 

6

%

Phase 4

 

Tentative Tract Map Approval

 

1.5

%

1,079,229

 

250,000

 

829,229

 

March-05

 

23

%

Phase 5

 

Final tract Map Approval

 

1.5

%

1,079,229

 

250,000

 

829,229

 

November-05

 

23

%

Phase 6

 

Closing

 

1.5

%

1,079,229

 

0

 

1,079,229

 

December-05

 

0

%

TOTAL Phases 1 - 6 (excludes Pre-agreement Investment)

 

13.5

%

 

 

1,000,000

 

8,713,062

 

 

 

 

 

Total Percentage Interest Payment

 

 

 

9,713,062

 

 

 

 

 

 

 

 

 

 

 

 

1) Dates in Bold are completed milestones as of 7-15-05.

 

Total Distributions & Fees to Emerald

 

 

 

 

 

 

 

 

 

Developer’s Percentage Interest

 

9,713,062

 

 

 

 

 

 

 

8% Return on Prior Investment Balance

 

567,058

 

 

 

0

 

347,533

 

Preferred return @ 5% on Percentage Interest Balance (12 months)

 

 

 

 

 

 

 

408,488

 

Pre-agreement investment

 

467,000

 

 

 

 

 

 

 

Administrative Fee

 

 

 

2,370,000

 

 

 

 

 

Shea Incentive (insert as appropriate here and at Exhibit E-5 in correct month in Row 19)

 

 

 

 

 

13,378,342

 

 

 

CFD Incentive (insert as appropriate here and at Exhibit E-5 in correct month in Row 20)

 

 

 

 

 

 

 

5,016,250

 

CFD Incentive Advance distribution

 

 

 

 

 

 

 

2,500,000

 

Total Including Percentage Interest, Incentives, Milestones & G&A

 

10,747,120

 

13,117,120

 

26,495,462

 

34,767,734

 

 

1

 

FIRST AMENDMENT TO
COMBINED AMENDMENT TO JOINT VENTURE AGREEMENTS

 

THIS FIRST AMENDMENT TO COMBINED AMENDMENT TO JOINT VENTURE AGREEMENTS is entered into as of this 26 day of March, 2004, by and among LEGAV Corporation, a California corporation (“LEGAV Golf’), GCL Corporation, a California corporation (“GCL”), LEGAV COMMERCIAL PROPERTY CORPORATION, a California corporation (“LEGAV Commercial”), and Emerald Development Group, LLC, a California limited liability company (“Emerald”).

 

WHEREAS, the parties hereto are parties to that certain Combined Amendment to Joint Venture Agreements dated as of January 1, 2004 (the “Agreement”);

 

WHEREAS, the parties desire to amend the Agreement in certain respects.

 

NOW, THEREFORE, BE IT AGREED, as follows:

 

1.   Defined Terms. Capitalized terms used herein and not otherwise defined are defined in the Agreement. In the event of any conflict between a definition in the Agreement and this First Amendment, the meaning in this First Amendment shall apply.

 

2.   Miscellaneous Changes to the Agreement.

 

a)   Section 5(a) of the Agreement is hereby amended by adding the following sentence at the end: “The vote of two members of the Management Committee shall be required to approve all matters involving the Project.”

 

b)   Section 7(b) of the Agreement is hereby amended to read as follows: “In the event the aggregate Tentative Net Proceeds for Distribution are more than $40,732,480, Emerald shall be entitled to a special profits interest in the Joint Ventures equal to (i) 30% of the difference between the aggregate Tentative Net Proceeds for Distribution and $40,732,480 and (ii)) 8% per annum (not compounded) of the amount set forth in clause (i) from the date the Shea Release Agreement is executed by the parties (the “Shea Incentive Payment”).”

 

c)   Section 7(c) of the Agreement is hereby amended to read as follows: “In the event the proceeds from the CFD Bond proceeds are in excess of $7,675,000.00, then Emerald shall be entitled to a special profits interest in the Joint Ventures equal to (i) 50% of the CFD Bond proceeds in excess of $7,675,000.00, plus (ii) 8% per annum (not compounded) of the amount set forth in clause (i) from the date of the City’s adoption of Notice of Formation of the CFD (the “CFD Incentive Payment”). Emerald shall use commercially reasonable efforts to maximize lot values and to minimize infrastructure costs with the final infrastructure costs not to exceed $27,400,000.00 subject to the CCA Venturers’ approval. In the event that the CFD Incentive Payment is due, but the Development Property is sold in stages, the CFD Incentive Payment will be paid on a pro rata basis (based

 


 

on the ratio of the gross acreage of the portion of the Development Property sold to the total Development Property, in each case excluding the portion of the Development Property transferred to the City for purposes of a community center) as each portion of the Development Property (other than the community center) is sold. The amount to be paid shall be based on the portion of the Development Property sold at each closing. In the event a portion of the Development Property has been sold prior to the time the CFD Incentive Payment becomes due, the pro rata amounts that would have been due in connection with the sale of that portion shall be paid at the time of the sale of the next portion of the Development Property.”

 

d)   Section 9 of the Agreement is hereby deleted. The section numbers of the sections following section 9 shall not be changed.

 

e)   Section 12(b) of the Agreement is hereby amended by adding the following phrase after the word “Emerald” in the third line thereof: “or as a result of a termination under Section 13.6 of the Development Agreement”.

 

f)   Section 12(d) of the Agreement is hereby amended by adding the following phrase after the phrase “Development Agreement” in the third line thereof: “or the Development Agreement is terminated pursuant to Section 13.6 thereof and the Development Property is sold in connection with the Project on or before the expiration of one year from the date of termination.”

 

g)   The following sentence is hereby added at the end of each of Section 12(b) and 12(c) of the Agreement: “The payments to Emerald pursuant to this subsection are in lieu of and not in addition to the amounts that Emerald is entitled to receive hereunder.”

 

h)   A new Section 12(f) is added to the Agreement to read in its entirety as follows: “Except as provided in Section 12(d), in the event that the Development Agreement is terminated pursuant to Section 13.6 thereof, Emerald is not entitled to any further distributions under this Agreement.”

 

i)   To avoid any confusion, the parties agree that any costs associated with the golf course clubhouse are not “Project Expenses”.

 

j)   The amounts due to Emerald under Sections 12(b) or (c) shall be reduced by any Cash Payments actually received by Emerald pursuant to the Development Agreement.

 

3.   Changes to Section 8 of the Agreement.

 

To avoid confusion that has arisen from the original wording, Section 8 of the Agreement is hereby amended to read in its entirety as follows:

 

8.         Allocations and Distributions.

 

a)   This Section describes how income will be allocated, and distributions will be made, to Emerald and the CCA Venturers.

 

 

2


 

b)   Out of the first Available Funds, the Joint Ventures shall first distribute the following funds: (i) to the CCA Venturers, all Project Expenses funded by the CCA Venturers plus an 8% per annum simple interest return accruing from the date of funding, (ii) to the CCA Venturers, a Stipulated Land Value of $13,200,000 with an annualized appreciation rate of 8% simple, interest from the date hereof, (iii) to Emerald, its Prior Investment Balance, and (iv) to any other person that has paid any Project Expenses, any amounts paid by such person for the Project Expenses plus the return on such investment (to the extent such substitute investment source and the return on its investment was mutually agreed to by the parties in accordance with Section 3.6 of the Development Agreement or is Emerald or a New Investor pursuant to the terms of Section 11 of this Agreement). The distributions just described comprise the Return of Capital. In the event that the funds available are insufficient for this purpose, then, except as provided in Section 11, the available funds shall be distributed among the Venturers in proportion to the amounts to which they would have been entitled under this Section 8(b). All amounts described in this Section 8(b) shall be calculated as of the date of distribution.

 

c)   After the distributions required by Section 8(b) have been made, out of any remaining Available Funds, the Joint Ventures shall next distribute to Emerald the Shea Incentive Payment then due, if any, and the CFD Incentive Payment then due, if any.

 

d)   After the other distributions required by Sections 8(b) and 8(c) have been made, out of the remaining Available Funds, if any, the Joint Ventures shall next distribute to Emerald an amount (not less than zero) equal to (i) the remaining Available Funds multiplied by Emerald’s Percentage Interest at that time, less (ii) the amount determined from the applicable line on the following chart:

 

 

If Emerald’s Percentage
Interest is:

 

Emerald Section 8(d)
Distribution to be
reduced by:

 

 

 

1.5

%

$

125,000

 

 

 

3

%

$

250,000

 

 

 

6

%

$

375,000

 

 

 

9

%

$

500,000

 

 

 

10.5

%

$

750,000

 

 

 

12

%

$

1,000,000

 

 

 

13.5

%

$

1,000,000

 

 

 

All remaining Available Funds held by each Joint Venture shall be distributed to the CCA Venturers as set forth in the respective Joint Venture Agreements.

 

For example, assume that Emerald’s Percentage Interest is 13.5% and the initial amount of Available Funds for distribution under this Section 8(d) equals $5,000,000. In that event, Emerald would have been entitled to a distribution equal to 13.5% of $5,000,000, or $675,000. Because that amount is less than

 

3


 

$1,000,000, no portion of those Available Funds will be distributed to Emerald; all will be distributed to the CCA Venturers. Now assume that the Joint Ventures receive another $5,000,000 of Available Funds. In that event, Emerald’s share of the total Available Funds, taking into account the first distribution as well, would be $1,350,000, less $1,000,000, or $350,000. The remaining Available Funds would be distributed to the CCA Venturers. Thereafter, Emerald would be entitled to 13.5% of any distributions made under this Section 8(d).

 

e)   For tax purposes, the Joint Ventures shall allocate to Emerald, prior to any other allocation of income, an amount of long term capital gain equal to the amount actually distributed to Emerald under any section of this Agreement less $467,000 (the “Emerald Income Amount”). In the event the Joint Ventures do not have sufficient long term capital gain to allocate against the Emerald Income Amount, then income shall be allocated to Emerald in the following order of priority until the total allocation equals the Emerald Income Amount: (i) all of the Joint Ventures’ long term capital gain; (ii) short term capital gain; (iii) ordinary income. Such allocation shall have substantial economic effect because it will only occur based on an increase in the value of the Development Property. Notwithstanding the foregoing, in the event that the CCA Venturers (or their affiliates) have capital losses that can be used to offset an allocation of capital gain from the Joint Ventures, any capital gain of the Joint Ventures shall be allocated to the Venturers in accordance with their percentage interests in the Net Proceeds for Distributions, but in no event will more than $3 million of capital gain in the aggregate for all years be allocated to the CCA Venturers under this sentence. In no event shall any special allocations be made td the extent that such allocations are not permitted by law.

 

f)   Notwithstanding Section 3(b), in the event the Actual Sales Proceeds received by the Joint Ventures are in a different proportion than that set forth in Section 3(b), then in that event the distributions and allocations, as between the two Joint Ventures, shall be made in proportion to the amounts received by each Joint Venture in such sale.

 

g)   For purposes of this Agreement, the following terms shall have the following meanings:

 

(1)   The term “Actual Sales Proceeds” shall mean the actual sales proceeds after taking into account all credits and deducts from the sale of the Development Property.

 

(2)   The term “Net Proceeds for Distribution” shall mean the funds available for distribution pursuant to Section 8(d).

 

(3)   The term “Prior Investment Balance” shall mean the sum of (i) Emerald’s initial Capital Account balance of $467,000 increased at the rate of 8% per annum (not compounded) from December 22, 2003 plus (ii) 8% per annum (not compounded) accrued on Emerald’s share of the Net Proceeds for Distribution accrued from the dates its Percentage Interest was earned in accordance with Section 6. For example, assume that Emerald’s Percentage Interest

 

4


 

is 13.5% and its share in the Net Proceeds for Distribution equals $10,000,000. In that event, 1.5/13.5 (roughly 11.1%) was earned on January 7, 2004, so $1,111,111 began to accrue an 8% return on January 7, 2004. The parties acknowledge that the calculation of the Prior Investment Balance depends on the Net Proceeds for Distribution, which in turn depends on the Prior Investment Balance but further acknowledge that this circular calculation can readily be resolved using the spreadsheet used to produce Exhibit E.

 

(4)   The term “Return of Capital” shall mean the total of (i) all Project Expenses funded by the CCA Venturers plus an 8% per annum simple interest return on each amount funded accruing from each date of funding, (ii) a Stipulated Land Value of $13,200,000 with an annualized appreciation rate of 8% simple interest from January 1, 2004, (iii) the Prior Investment Balance, and (iv) any amounts paid by a substitute investment source for the Project Expenses plus the return on such investment (to the extent such substitute investment source and the return on its investment was mutually agreed to by the parties in accordance with Section 3.6 of the Development Agreement or is Emerald or a New Investor pursuant to the terms of Section 11 of this Agreement). For purposes of computing Project Expenses and consequently the Net Proceeds for Distribution, the Joint Ventures shall be deemed to have paid, commencing January 2004, a management fee of $6,500 per month to their affiliates for management services associated with the Project in lieu of any management fees actually paid and whether or not any management fees are actually paid, but not in excess of $234,000. Until the entire Return of Capital has been paid as of any date, there will be no Net Proceeds for Distribution.

 

(5)   “Available Funds” means funds available to the Joint Ventures from the sale or other disposition of the Development Property (or funds received from the ultimate disposition of any noncash property received for the Development Property), after payment of any costs associated with such disposition. For example, if the Joint Ventures dispose of a portion of the Development Property in exchange for an interest in another entity, there will be no Available Funds as a result of such disposition until cash is received from that entity or in exchange for the Joint Ventures’ interest in such entity.

 

(6)   “Tentative Net Proceeds for Distribution” means the Available Funds less the amounts described in Section 8(b) and the CFD Incentive Payment.

 

h)   Exhibit E to the Development Agreement and this Agreement reflects an example of the distributions to be made hereunder and under the Development Agreement under the assumptions used to prepare that exhibit.

 

5


 

4.   In all other respects, the Agreement shall remain in full force and effect.

 

Executed by the parties as of the date first written above.

 

 

Emerald:

 

 

 

 

EMERALD DEVELOPMENT GROUP, LLC, a California limited liability company

 

 

 

 

 

By:

/s/ James B. Kelly

 

 

James B. Kelly, President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Joint Ventures:

 

 

 

 

 

 

ALISO VIEJO GOLF CLUB JOINT VENTURE, a California joint venture

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

 

 

 

ALISO VIEJO COMMERCIAL PROPERTY JOINT VENTURE, a California joint venture

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

 

 

 

GCL CORPORATION

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

LEGAV CORPORATION

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

Douglas T. Howe, Vice President

 

6


 

 

LEGAV COMMERCIAL PROPERTY CORPORATION

 

 

 

 

 

By: 

/s/ Douglas T. Howe

 

Douglas T. Howe, Vice President

 

7


 

COMBINED AMENDMENT TO JOINT VENTURE AGREEMENTS

 

THIS COMBINED AMENDMENT TO JOINT VENTURE AGREEMENTS is entered into as of this 1st day of January, 2004, by and among LEGAV Corporation, a California corporation (“LEGAV Golf”), GCL Corporation, a California corporation (“GCL”), LEGAV COMMERCIAL PROPERTY CORPORATION, a California corporation (“LEGAV Commercial”), and Emerald Development Group, LLC, a California limited liability company (“Emerald”).

 

WHEREAS, LEGAV Golf and GCL are parties to that certain Joint Venture Agreement relating to Aliso Viejo Golf Club dated June 16, 1997, and amended on five previous occasions, with the last amendment dated April       , 1999 (the “Golf JV Agreement”) pursuant to which Aliso Viejo Golf Joint Venture (“AV Golf’) was formed;

 

WHEREAS, LEGAV Commercial and GCL are parties to that certain Commercial Property Joint Venture Agreement dated November 20, 1997, and amended on April     , 1999 (the “Commercial JV Agreement”) pursuant to which Aliso Viejo Commercial Property Joint Venture (“AV Commercial”) was formed;

 

WHEREAS, Emerald is a party to that certain Development Agreement dated December 22, 2003 with AV Golf and AV Commercial (the “Original Development Agreement”); which contemplates that Emerald will be admitted as a partner in AV Golf and AV Commercial (collectively, the “Joint Ventures”);

 

WHEREAS, this Agreement is designed to implement the provisions of the Original Development Agreement relating to admitting Emerald as a partner in the Joint Ventures, with certain revisions as agreed by the parties;

 

WHEREAS, Emerald and the Joint Ventures have entered into that certain Amended and Restated Development Agreement dated as of January 1, 2004 (the “Development Agreement”);

 

WHEREAS, LEGAV Golf, LEGAV Commercial and GCL (collectively the “CCA Venturers”) desire to amend the Golf JV Agreement and the Commercial JV Agreement to admit Emerald as a Venturer in each of AV Golf and AV Commercial.

 

NOW, THEREFORE, BE IT AGREED, as follows:

 

1.   Defined Terms. Capitalized terms used herein and not otherwise defined are defined in the Development Agreement. Other capitalized terms are defined, to the extent they relate to the Golf JV, in the Golf JV Agreement or to the extent they relate to the Commercial JV, in the Commercial JV Agreement. In the event of any conflict between a definition in a JV Agreement and the Development Agreement, the meaning in the Development Agreement shall apply.

 

2.   Admission to and Interest in Joint Ventures.

 

a)   Emerald is hereby admitted to each of the Joint Ventures as a Venturer and shall have the rights and obligations set forth herein and therein. This Agreement and the rights and obligations of Emerald as a Venturer relate solely to the development, use for purposes other than a golf course, and disposition of the Development Property. In all other respects, the JV

 


 

Agreements shall remain in full force and effect and Emerald shall have no rights or obligations with respect to any of the other assets, liabilities or operations of the Joint Ventures. For tax purposes, none of the liabilities of the Joint Ventures shall be allocated to Emerald.

 

b)   Emerald’s interest in the income and distributions of the Joint Ventures shall be determined as set forth in this Agreement. Except for income allocated to Emerald and distributions made to Emerald as set forth herein, all other income, losses, credits and other items shall be allocated, and all other distributions shall be made, to the CCA Venturers in the manner set forth in the JV Agreements without regard to this Agreement.

 

3.   Allocation Between Joint Ventures.

 

a)   The Development Property belongs partly to the Golf JV and partly to the Commercial JV. The Project relates to all of the Development Property and will benefit both Joint Ventures.

 

b)   In order to simplify matters, unless a contribution, allocation, distribution or other item is allocated specifically to one Joint Venture or the other, all such items shall be allocated between the Joint Ventures in the following proportions: Golf JV — [75]%; Commercial JV — [25]%, which percentages represent the proportions of the Development Property owned by each of the Joint Ventures. For example, the capital contribution by Emerald set forth in Section 4 shall be allocated in such proportions.

 

4.   Capital Contribution. Emerald hereby contributes to the capital of the Joint Ventures all of its plans, ideas, documents, proposals, approvals and all other matters of any nature whatsoever associated with the Development Property. In exchange for such contribution, Emerald shall have an initial Capital Account in the Joint Ventures equal to $467,000, which amount represents the amount previously invested by Emerald in the Project. Except to the extent income of the Joint Ventures is allocated to Emerald as set forth herein and not yet distributed to Emerald, Emerald will have no other interest in the capital of the Joint Ventures.

 

5.   Obligations of the Venturers.

 

a)   Emerald, subject to the terms in the Joint Venture Agreements and Major Decisions, as defined below, shall have responsibility and authority as Development Partner of each Joint Venture to develop and implement entitlement and development strategies and to manage day-to-day operations of the Project. Emerald shall be entitled to one representative on the Management Committee of each Joint Venture. Such representative shall be James Kelly unless the CCA Venturers consent to the appointment of a different representative. Emerald’s representative on the Management Committee shall participate in discussions only involving matters that could impact the Project and shall have no say in any other matters involving the Joint Ventures.

 

b)   Emerald shall provide monthly Project status reports and monthly financial reconciliation reports related to the Project to the CCA Venturers’

 

2


 

appointed Representatives in a form reasonably requested by the CCA Venturers. The CCA Venturers’ initial Representatives are designated as Doug Howe and Mark Dietz and may be substituted as determined by the Venturers. The CCA Venturers’ Representatives shall seek timely approval from the their Investment Committees on matters defined as Major Decisions. All Major Decisions shall require the consent of the CCA Venturers, which consent shall not be unreasonably withheld except for Major Decisions described in clauses (vi)-(ix) of subsection(c),consent to which may be withheld in the sole discretion of the CCA Venturers if such Major Decisions are not contemplated by the Development Agreement.

 

c)   Major Decisions shall be defined as (i) execution of any agreements binding the Joint Ventures or the Development Property, including any agreements with the City, (ii) the CFD formation, (iii) the Budgets for the Project infrastructure, (iv) major adjustments to the entitlement budget for the Project, (v) any agreements related to the modification/removal of the Shea Restrictions, (vi) the refinancing of the Golf Property or Commercial Property debt, (vii) sale of the Development Property, (viii) any matters relating to assets of the Joint Ventures not associated with the Project and (ix) any other Major Policy Decisions set forth in the Joint Venture Agreements.

 

d)   The CCA Venturers shall cause the Joint Ventures to comply with the Development Agreement.

 

6.   Emerald’s Percentage Interest.

 

a)   Emerald’s entitlement to allocations of income and distributions of cash shall be determined based in large part on its Percentage Interest in certain profits of the Joint Ventures, as determined below. Emerald is to perform certain services for the Joint Ventures. Upon completion of such services, or under certain other circumstances, Emerald will be entitled to an increase in its Percentage Interest.

 

b)   Emerald’s shall be entitled to a Percentage Interest of 1.5% upon presentation of the Development Plan to the City Council of Aliso Viejo on or about January 7, 2004 for review so that the Joint Ventures may receive City Council’s recommendation.

 

c)   Emerald’s shall be entitled to an additional Percentage Interest of 1.5% upon certification of the City’s General Plan by the City Council.

 

d)   Emerald’s shall be entitled to an additional Percentage Interest of 3% upon the City and the Joint Ventures executing a Development Agreement acceptable to the Joint Ventures for the Residential Development and the uses for the Retained Property.

 

e)   Emerald’s shall be entitled to an additional Percentage Interest of 3% upon receipt of the Shea Release Agreement executed by Shea.

 

3

 

f)   Emerald’s shall be entitled to an additional Percentage Interest of 1.5% upon the approval by the City (and all other applicable governmental authorities) of the Tentative Tract Map.

 

g)   Emerald’s shall be entitled to an additional Percentage Interest of 1.5% upon the approval of the Final Tract Map by the City (and all other applicable governmental authorities).

 

h)   Emerald’s shall be entitled to an additional Percentage Interest of 1.5% upon the closing and funding of the sale of all of the Residential Development to a third party(ies) and reconciliation of expenses for the Project.

 

i)   In the event the Development Property is sold prior to the completion of all Phases and prior to or in connection with termination of the Development Agreement by Owner, Emerald’s Percentage Interest will be a total of 13.5%. In such event, then Emerald’s Profits Distribution, as determined using the chart in Section 8(b)(1), shall not be reduced by more than the amount it would have been reduced prior to the increase in the Percentage Interest pursuant to this subsection.

 

j)   Sections 11 and 12, below, describes certain other circumstances under which Emerald’s Percentage Interest will be increased, Except as provided in Section 11 (relating to a substitute investor), in no event will Emerald’s Percentage Interest exceed 13.5%.

 

7.   Emerald’s Additional Profits Interests.

 

a)   Emerald’s shall also be entitled to allocations of income and distributions of cash determined based on the Shea Incentive Payment and the CFD Payment, as determined below.

 

b)   In the event the Net Lot Revenues are more than $88,900,000, Emerald shall be entitled to a special profits interest in the Joint Ventures equal to (i) 30% of the difference between the Net Lot Revenues and $88,900,000, plus (ii) the amount set forth in clause (i) increased at the rate of 8% per annum (not compounded) from the date the Shea Release Agreement is executed by the parties (the “Shea Incentive Payment”).

 

c)   In the event the proceeds from the CFD Bond proceeds are in excess of $7,675,000.00, then Emerald shall be entitled to a special profits interest in the Joint Ventures equal to (i) 50% of the CFD Bond proceeds in excess of $7,675,000.00, plus (ii) the amount set forth in clause (i) increased at the rate of 8% per annum (not compounded) from the date of the City’s adoption of Notice of Formation of the CFD (the “CFD Incentive Payment”). Emerald shall use commercially reasonable efforts to maximize lot values and to minimize infrastructure costs with the final infrastructure costs not to exceed $27,400,000.00 subject to the CCA Venturers’ approval.

 

4


 

8.   Allocations and Distributions to Emerald — Single Cash Closing.

 

a)   This Section describes how income will be allocated, and distributions will be made, to Emerald in the event that all of the Development Property is sold by the Joint Ventures for cash in a single transaction. The next section describes the allocations and distributions to Emerald in the event the Development Property is disposed of in a different manner.

 

b)   At the Closing, the Joint Ventures shall distribute to Emerald the sum of the following amounts (the “Emerald Profit Distribution”):

 

(1)   an amount (not less than zero) equal to (i) the Net Proceeds for Distribution multiplied by Emerald’s Percentage Interest at that time, less (ii) the amount determined from the applicable line on the following chart:

 

 

If Emerald’s Percentage
Interest is:

 

Emerald Section 8(d)
Distribution to be
reduced by:

 

 

 

1.5

%

$

125,000

 

 

 

3

%

$

250,000

 

 

 

6

%

$

375,000

 

 

 

9

%

$

500,000

 

 

 

10.5

%

$

750,000

 

 

 

12

%

$

1,000,000

 

 

 

13.5

%

$

1,000,000

 

 

 

(2)   The Shea Incentive Payment, if any.

 

(3)   The CFD Incentive Payment, if any.

 

c)   In addition to the distributions, if any required by subsection (b), the Joint Ventures shall distribute to Emerald an amount equal to Emerald’s Prior Investment Balance prior to the distribution of any Net Proceeds for Distribution.

 

d)   For tax purposes, the Joint Ventures shall allocate to Emerald, prior to any other allocation of income, an amount of long term capital gain equal to the Emerald Profits Distribution plus the Prior Investment Balance less $467,000 (the “Emerald Income Amount”). In the event the Joint Ventures do not have sufficient long term capital gain to allocate against the Emerald Income Amount, then income shall be allocated to Emerald in the following order of priority until the total allocation equals the Emerald Income Amount (i) all of the Joint Ventures’ long term capital gain; (ii) short term capital gain; (iii) ordinary income. Such allocation shall have substantial economic effect because it will only occur based on an increase in the value of the Development Property. Notwithstanding the foregoing, in the event that the CCA Venturers (or their affiliates) have capital losses that can be used to offset an allocation of capital gain from the Joint Ventures, any capital gain of the Joint Ventures shall be allocated to the Venturers in

 

5


 

accordance with their percentage interests, but in no event will more than $3 million of capital gain in the aggregate for all years be allocated to the CCA Venturers under this sentence. In no event shall any special allocations be made to the extent that such allocations are not permitted by law.

 

e)   Notwithstanding Section 3(b), in the event the Actual Sales Proceeds received by the Joint Ventures are in a different proportion than that set forth in Section 3(b), then in that event the distributions and allocations, as between the two Joint Ventures, shall be made in proportion to the amounts received by each Joint Venture in such sale.

 

f)   For purposes of this Agreement, the following terms shall have the following meanings:

 

(1)   The term “Actual Sales Proceeds” shall mean the actual sales proceeds after taking into account all credits and deducts from the sale of the Development Property.

 

(2)   The term “Net Proceeds for Distribution” shall mean (i) Actual Sales Proceeds, less (ii) the Project Expenses to the extent such are not included in the Return of Capital, (iii) the Return of Capital, as defined below, (iv) the Shea Incentive Payment, if any, and (v) the CFD Incentive Payment, if any.

 

(3)   The term “Prior Investment Balance” shall mean the sum of (i) Emerald’s initial Capital Account balance of $467,000 increased at the rate of 8% per annum (not compounded) from December 22, 2003 plus (ii) 8% per annum (not compounded) accrued on Emerald’s share of the Net Proceeds for Distribution accrued from the dates its Percentage Interest was earned in accordance with Section 6. For example, assume that Emerald’s Percentage Interest is 13.5% and its share in the Net Proceeds for Distribution equals $10,000,000. In that event, 1.5/13.5 (roughly 11.1%) was earned on January 7, 2004, so $1,111,111 began to accrue an 8% return on January 7, 2004.

 

(4)   The term “Return of Capital” shall mean the total of (i) all Project Expenses funded by the Joint Ventures plus an 8% per annum simple interest return accruing from the date of funding, (ii) a Stipulated Land Value of $13,200,000 with an annualized appreciation rate of 8% simple interest from the date hereof, (iii) the Prior Investment Balance, and (iv) any amounts paid by a substitute investment source for the Project Expenses plus the return on such investment (to the extent such substitute investment source and the return on its investment was mutually agreed to by the parties in accordance with Section 3.6 of the Development Agreement or is Emerald or a New Investor pursuant to the terms of Section 11 of this Agreement). For purposes of computing Project Expenses and consequently the Net Proceeds for Distribution, the Joint Ventures shall be deemed to have paid,

 

6


 

commencing January 2004, a management fee of $6,500 per month to their affiliates for management services associated with the Project in lieu of any management fees actually paid and whether or not any management fees are actually paid, but not in excess of $234,000. Until the entire Return of Capital has been paid as of any date, there will be no Net Proceeds for Distribution.

 

g)   Exhibit E to the Development Agreement reflects an example of the distributions to be made hereunder and under the Development Agreement under the assumptions used to prepare that exhibit.

 

9.   Allocations and Distributions to Emerald — Other than Single Cash Closing.

 

a)   This Section describes how income will be allocated and distributions will be made to Emerald in the event that part or all of the Development Property is sold by the Joint Ventures other than a sale of all of the Development Property for cash in a single transaction.

 

b)   The Venturers acknowledge that the precise means by which the Development Property will be disposed of by the Joint Ventures cannot be known at this time. For example, and without limitation, it is possible that it will be sold in an installment sale, or traded for other property, or contributed to another entity in exchange for interests in that entity or sold in smaller parcels at multiple closings. It is also possible, albeit not expected, that the interests of the Venturers in the Joint Ventures themselves will be sold rather than the Development Property.

 

c)   In any such event, Emerald will be entitled to distributions on the terms set forth in Section 8 based on the cash amounts actually ultimately received by the Joint Ventures or the Venturers from time to time, whether directly or indirectly. For example, assume that Emerald’s Percentage Interest is 13.5% and the initial Net Proceeds for Distribution available to the Joint Ventures equal $5,000,000. In that event, Emerald would have been entitled to a distribution equal to 13.5% of $5,000,000, or $675,000. Because that amount is less than $1,000,000, no portion of those Net Proceeds will be distributed to Emerald. (Of course, because Net Proceeds for Distribution are calculated after subtracting the Return of Capital, Emerald would have been entitled to a prior distribution representing its share of the Return of Capital.) Now assume that the Joint Ventures receive another $5,000,000 of Net Proceeds for Distribution. In that event, Emerald’s share of the total Net Proceeds for Distribution would be $1,350,000, less $1,000,000, or $350,000. Thereafter, Emerald would be entitled to 13.5% of any Net Proceeds for Distribution received by the Joint Ventures.

 

d)   In the event the Shea Incentive Payment and/or the CFD Incentive Payment have not yet been earned as of the initial receipt of Net Proceeds for Distribution by the Joint Ventures, but are earned thereafter, the amounts due with respect thereto shall be distributed by the Joint Ventures to Emerald prior to any other distribution by the Joint Ventures.

 

7


 

e)   For tax purposes, the Joint Ventures shall allocate to Emerald, prior to any other allocation of income, an amount of long term capital gain equal to any distributions made to Emerald pursuant to subsections (c) or (d). In the event the Joint Ventures do not have sufficient long term capital gain to allocate against such distributions, then income shall be allocated to Emerald in the following order of priority until the total allocation equals the total amount of such distributions: (i) all of the Joint Ventures’ long term capital gain; (ii) short term capital gain; (iii) ordinary income. Such allocation shall have substantial economic effect because it will only occur based on an increase in the value of the Development Property. Notwithstanding the foregoing, in the event that the CCA Venturers (or their affiliates) have capital losses that can be used to offset an allocation of capital gain from the Joint Ventures, any capital gain of the Joint Ventures shall be allocated to the Venturers in accordance with their percentage interests, but in no event will more than $3 million of capital gain in the aggregate for all years be allocated to the CCA Venturers under this sentence. In no event shall any special allocations be made to the extent that such allocations are not permitted by law.

 

f)   Notwithstanding Section 3(b), because this Section 9 contemplates a possible sale of less than all of the Development Property, in such event the distributions and allocations, as between the two Joint Ventures, shall be made in proportion to the amounts received by each Joint Venture in such sale or if the sale proceeds are not specifically allocated between the Joint Ventures as part of such transaction, then such proportion shall be based on the relative gross acreages of each included in such transaction. The Joint Ventures at any time may agree upon a different method of allocation between them.

 

10.   Effective Date.

 

a)   Provided the condition set forth in subsection (b) is ultimately fulfilled, this Agreement shall take effect as of January 1, 2004.

 

b)   The admission of Emerald as a Venturer in the Golf JV and the amendment of the Golf JV Agreement requires the consent of Textron Financial Corporation (“Textron”). Accordingly, without such consent, Emerald shall not be admitted as a partner in the Golf JV. In all events, the amounts due to Emerald hereunder shall be subordinate to the payment in full of all amounts due by the Golf JV to Textron.

 

c)   LEGAV Golf and GCL shall use commercially reasonable efforts to obtain the consent of Textron to the admission of Emerald to the Golf JV. In the event that Textron refuses to grant such consent, the parties shall take such other steps, not requiring Textron’s consent, to amend this Agreement and the Original Development Agreement (which shall remain in effect if Textron’s consent is not received) to achieve to the greatest extent possible the same economic and tax results contemplated by this Agreement.

 

11.   Substitute Investor. In the event the Joint Ventures elect not to continue to provide funding pursuant to Section 8.1 of the Development Agreement, Emerald

 

8


 

may fund the capital required for the Project Expenses from its own sources or obtain a substitute New Investor. The resulting new funding structure shall not adversely affect the Venturers’ rights herein except that the CCA Venturers’ share of the Net Proceeds for Distribution shall be 50% of the Net Proceeds for Distribution and the remaining fifty percent 50% shall be divided between Emerald and New Investor as agreed to by those parties. The CCA Venturers will maintain their Return of Capital, which will continue to accrue at the simple interest rate of 8% per annum. At Closing, if no Net Proceeds for Distribution are available, the funds available will be distributed in the following order of priority: (i) the CCA Venturers will receive payment of the Stipulated Land Value of $13,200,000, (ii) all other portions of the Return of Capital will be paid other than amounts due to the CCA Venturers, (iii) the Shea Incentive Payment and the CFD Incentive, if any shall be paid, and (iv) the CCA Venturers will be entitled to the remainder of their Return of Capital. If Emerald does not choose to exercise the right to continue to fund the Project Expenses provided herein, then the Termination Notice by the Joint Ventures will be treated as a termination without cause and Section 12 hereof shall apply.

 

12.   Termination of Emerald’s Joint Venture Interest.

 

a)   If the Joint Ventures terminate the Development Agreement for any reason, then the Joint Ventures shall purchase, and Emerald shall sell, its interest in the Joint Ventures on the terms set forth in this Section.

 

b)   Except as provided in subsection (d), below, the amount to be paid to Emerald for its interest in the Joint Ventures if the Development Agreement is not terminated as a result of an Event of Default by Emerald (the Termination Price”) shall be the sum of the following items: (i) Emerald’s share of the Prior Investment Balance, (ii) the Shea Incentive Payment, if any, (iii) the CFD Incentive Payment, if any, and (iv) an amount equal to (a) $44,000,000 multiplied by (b) the sum of (x) the accumulated Percentage Interests earned by Emerald pursuant to Section 6 through the date of termination, plus (y) 50% of the remaining unearned Percentage Interest (i.e., if 6% is earned, 50% x 7.5% unearned (13.5-6) = 3.75% for a total of 9.75%). If final values for the Shea Incentive Payment and/or CFD Incentive Payment have not been determined at the time when the Termination Price is due, the portion of the Termination Price relative to the Shea Incentive Payment, if any and the CFD Incentive Payment, if any, shall be paid promptly after such amounts are determined, and the balance of the Termination Price will be paid immediately.

 

c)   Upon proper termination of the Development Agreement as a result of an Event of Default by Emerald, the Joint Ventures shall pay to Emerald at the Closing (a) the amount that would be due to Emerald pursuant to Section 8(b)(1) based on Emerald’s Percentage Interest as of the date of termination, (b) the Shea Incentive Payment, if any, provided that the Shea Release Agreement has been executed by Shea as of the date of termination of the Development Agreement, (c) the CFD Incentive Payment, if any, provided that the City has adopted the Notice of Formation for the CFD as of the date of termination of the Development Agreement and (d) Emerald’s share of the Prior Investment Balance. If Section 9 would

 

9


 

have applied if this Agreement had not been terminated, then payments shall be made as set forth in that section based on Emerald’s Percentage Interest as of the date of termination. Notwithstanding the above, any amount payable to Emerald upon a termination under this Section 12(c) shall be subject to an offset for any of the Joint Ventures’ damages, including all attorneys’ fees and costs, arising out of or resulting from Emerald’s Event of Default under the Development Agreement.

 

d)   If the Development Agreement is terminated as a result of a sale of the Development Property that is not described in the first sentence of Section 8.2 of the Development Agreement, then Emerald shall be entitled to the benefits set forth in this Agreement other than this Section 12 if, as and when it would have been entitled to such benefits had the Development Agreement not been terminated.

 

e)   Upon distribution to Emerald of all amounts due to it under this Agreement, the Joint Ventures may repurchase Emerald’s interest in each of them for one dollar.

 

13.   Conflict with Joint Venture Agreements.

 

a)   This Agreement amends each of the Joint Venture Agreements. In the event of a conflict between the terms hereof and a Joint Venture Agreement, this Agreement shall be controlling. In all other respects, the Joint Venture Agreements shall remain in full force and effect.

 

b) Sections 15.1.1 and 15.1.2 of the Golf JV Agreement and Sections 14.1.1 and 14.1.2 of the Commercial JV Agreement (each of which relates to restrictions on transfers) shall apply to Emerald in the same manner as if “James B. Kelly” were substituted for “Paul N. Donnelly” and if “Emerald” were substituted for “AVG” or “AVC” each place they appear.

 

c)   Section 16 of the Golf JV Agreement and Section 15 of the Commercial JV Agreement (each of which relates to a put or right of first refusal) shall not apply to Emerald and Emerald shall have no rights under such sections.

 

d)   The CCA Venturers shall continue to have all other authority as set forth in the Joint Venture Agreements.. Except as expressly set forth herein or for actions which are in conflict with the terms of the Development Agreement, the CCA Venturers shall have full authority to manage the Joint Ventures and take any action, including, without limitation Major Policy Decision matters and the prohibited transactions and self-dealing matters described in Article 11 of the Joint Venture Agreements, without Emerald’s consent.

 

e)   Emerald acknowledges that the Joint Venture Agreements contain various provisions related to a prior development plan for the Joint Ventures’ assets and that Emerald shall not have any right to enforce any such provisions, it being understood that the only future plan for the Joint

 

10


 

Ventures’ assets in which Emerald has an interest or rights is the development of the Project.

 

14.   Litigation. In the event of any litigation under or respecting this Agreement, the prevailing party shall be entitled to attorneys’ fees and court costs through all pretrial, trial, appellate, administrative, and post-judgment proceedings.

 

15.   Payment of Sums Owed. Upon termination, all sums owed by any party to another shall be paid within 30 days of the effective date of such termination.

 

16.   Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and (i) hand delivered, including delivery by courier service, (ii) sent by facsimile, or (iii) sent by certified mail, return receipt requested, postage prepaid, addressed as shown below, or to such other address as the party concerned may substitute by written notice to the other. If the notice is sent by facsimile, it must be properly addressed, reflecting the facsimile phone number of the addressee(s), and must be transmitted by a facsimile which produces a dated message completed confirmation. All notices hand delivered shall be deemed received on the date of delivery. All notices forwarded by mail shall be deemed received on a date three days (excluding Sundays and legal holidays when the U.S. mail is not delivered) immediately following date of deposit in the U.S. mail. Provided, however, the return receipt indicating the date upon which all notices were received shall be prima facie evidence that such notices were received on the date on the return receipt.

 

If to Emerald:

 

EMERALD DEVELOPMENT GROUP, LLC

 

 

1081 Camino del Rio South, Suite 106

 

 

San Diego, California 82108

 

 

Attention: Mr. Jim Kelly

 

 

Facsimile: (619) 295-5798

 

 

 

With a copy to:

 

THORP REED & ARMSTRONG, LLP

 

 

301 Grant Street, 14th Floor

 

 

Pittsburgh, PA 15219-1425

 

 

Attention: John C. Rodney, Esq.

 

 

Facsimile: (412) 394-2555

 

 

 

If to the Joint Ventures:

 

 

Or any CCA Venturer

 

ALISO VIEJO GOLF CLUB JOINT VENTURE and ALISO VIEJO COMMERCIAL PROPERTY JOINT VENTURE.

 

 

3030 LBJ Freeway, Suite 600

 

 

Dallas, Texas 75234

 

 

Attention: Doug Howe

 

 

Facsimile: (972) 888-6209

 

 

 

With a copy to:

 

LEGAL DEPARTMENT

 

 

3030 LBJ Freeway, Suite 600

 

 

Dallas, Texas 75234

 

 

Attention: Thomas T. Henslee

 

 

Facsimile: (972) 888-6271

 

11


 

The addresses and addressees may be changed by giving notice of such change in the manner provided herein for giving notice. Unless and until such written notice is received, the last address and addressee given shall be deemed to continue in effect for all purposes. No notice to either the Joint Ventures or Emerald shall be deemed given or received unless the entity noted “With a copy to” is simultaneously delivered notice in the same manner as any notice given to either Emerald or the Joint Ventures, as the case may be.

 

17.   Assignment; Encumbrance. Except as expressly provided herein, this Agreement and any documents executed in connection therewith and the Percentage Interest earned by Emerald shall not be assigned in any manner by Emerald without the prior written consent of the Joint Ventures (which consent may be withheld in the Joint Ventures’ sole discretion), and any assignment without such prior written consent shall be null and void.

 

18.   Confidentiality. The terms and conditions of this Agreement shall be kept strictly confidential, and any confidential information of a disclosing party shall be kept strictly confidential by the receiving party and shall not be disclosed to any third party without first receiving the disclosing party’s prior written consent to such disclosure. The parties may disclose that they are Venturers in the Joint Ventures and the identities of the other Venturers and such other information as may be needed in order to implement the Project.

 

19.   Entire Agreement. This Agreement embodies the entire agreement and understanding of any party relating to the subject matter hereof and supersedes all prior representations, agreements and understanding, oral or written, relating to such subject matter. Neither this Agreement nor any provision hereof may be amended, enlarged, modified, waived, discharged or terminated except as expressly provided herein or by an instrument signed by all parties or their respective successors. Provided that such amendment does not impact Emerald or the Project, the Joint Venture Agreements may be otherwise amended without the consent of Emerald.

 

20.   State Law. This Agreement has been executed and delivered in the State of California and shall be construed in accordance with the laws of the State of California. Any action brought to enforce or interpret this Agreement shall be brought in the court of appropriate jurisdiction in Orange County, California. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or considering same shall not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the party who itself or through its agent prepared the same; it being agreed that all parties hereto have participated in the preparation of this Agreement and that legal counsel was consulted by each responsible party before the execution of this Agreement.

 

21.   Time. Time is of the essence in this Agreement and each and all of its provisions. Any extension of time granted for the performance of any duty under this Agreement shall not be considered an extension of time for the performance of any other obligation under this Agreement.

 

12


 

22.   Exhibits. All Exhibits attached hereto are incorporated herein by this reference as if fully set forth herein; provided, however, in the event that at the time of the execution of this Agreement any of the Exhibits to be attached are incomplete, the parties shall use their best efforts to complete such Exhibits at the earliest possible date, but in any event such Exhibits shall be completed and attached to this Agreement prior to the expiration of 10 days from the date hereof. If any Exhibits are subsequently changed by the mutual written agreement of the parties, the Exhibits shall be modified to reflect such change or changes and initialed by the parties

 

23.   Captions. Captions, titles to sections and paragraph headings used herein are for convenience or reference and shall not be deemed to limit or alter any provision hereof.

 

Executed by the parties as of the date first written above.

 

 

Emerald:

 

 

 

 

 

 

EMERALD DEVELOPMENT GROUP, LLC, a California limited liability company

 

 

 

 

 

By:

/s/ James B. Kelly

 

 

James B. Kelly, President

 

 

 

 

 

 

 

 

 

 

 

The Joint Ventures:

 

 

 

 

 

 

ALISO VIEJO GOLF CLUB JOINT VENTURE, a California joint venture

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

 

 

 

 

 

ALISO VIEJO COMMERCIAL PROPERTY JOINT VENTURE, a California joint venture

 

 

 

 

 

 

 

By:

GCL CORPORATION, general partner

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

 

 

 

Douglas T. Howe, Vice President

 

13


 

 

GCL CORPORATION

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

LEGAV CORPORATION

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

Douglas T. Howe, Vice President

 

 

 

 

 

 

LEGAV COMMERCIAL PROPERTY CORPORATION

 

 

 

 

 

By:

/s/ Douglas T. Howe

 

Douglas T. Howe, Vice President

 

14

 

EXHIBIT A

 

GOLF PROPERTY

 

Lots 4, 5 and 6 of LL98-031 recorded as Document Number 20020400665 on May 14, 2002 in the real property records for the County of Orange, California.

 


 

EXHIBIT B

 

COMMERCIAL PROPERTY

 

Lots 1, 2 and 3 of LL98-031 recorded as Document Number 20020400665 on May 14, 2002 in the real property records for the County of Orange, California.

 


 

[Map]

 


 

EXHIBIT D

 

SHEA RESTRICTIONS

 

1.             Terms and conditions contained in Corporation Grant Deed from Shea Homes Limited Partnership (“Shea”) to Aliso Viejo Commercial Property Joint Venture (“AV Commercial”), recorded as Document Number 19970601048 on November 21, 1997 in the real property records of the County of Orange, California, as amended by that certain Modification of Covenants, Conditions and Restrictions and Consent to LL98-031 among Shea, AV Commercial and Aliso Viejo Golf Club Joint Venture (“AV Golf”), dated December 20, 2002 and recorded as Document Number 2003000359203 on April 1, 2003 in the real property records of the County of Orange, California (the “Modification”).

 

2.             Terms and conditions contained in Corporation Grant Deed from Mission Viejo Company (“MV”) to Aliso Viejo Golf, L.P. (“AV LP”), recorded as Document Number 95-0380303 on August 31, 1995 in the real property records of the County of Orange, California, as amended by (i) that certain Amendment of Use Restrictions between Shea and AV LP, recorded as Document Number 19970575600 on November 12, 1997 in the real property records of the County of Orange, California, (ii) that certain Amendment of Use Restrictions between Shea and AV LP, recorded as Document Number 19970601046 on November 21, 1997 in the real property records of the County of Orange, California and (iii) the Modification.

 

3.             Declaration of Covenants, Conditions and Restrictions for Aliso Viejo Community Association date April 1, 1982 and recorded as Document Number 82-118353 in the real property records of the County of Orange, California.

 

4.             Notice of Annexation and Supplemental Declaration of Covenants, Conditions and Restrictions for Lots 1, 2 and 3 of Tract Map No. 14449 (Delegate District No. 25) of Aliso Viejo Community Association recorded as Document Number 19970601047 on November 21, 1997 in the real property records of the County of Orange, California, as amended by that certain Supplemental Declaration of Covenants, Conditions and Restrictions for Lots 1, 2 and 3 of Tract Map 14449 (Delegate District No. 25) of Aliso Viejo Community Association recorded as Document Number 2003000359204 on April 1, 2003 in the real property records for the County of Orange, California..

 

5.             Notice of Annexation and Supplemental Declaration of Covenants, Conditions and Restrictions for Lots 4 and 5 of Tract Map No. 14449 (Delegate District No. 25) of Aliso Viejo Community Association recorded as Document Number 95-0380302 on August 31, 1995 in the real property records of the County of Orange, California, as amended by that certain Supplemental Declaration of Covenants, Conditions and Restrictions for Lots 4 and 5 of Tract Map 14449 (Delegate District No. 25) of Aliso Viejo Community Association recorded as Document Number 2003000359205 on April 1, 2003 in the real property records for the County of Orange, California.

 

 

EXHIBIT E-1
FINANCIAL PROJECTIONS - ALISO EMERALD - 36 MONTHS TO FINAL MAP

 

 

 

 

 

MAJOR ASSUMPTIONS

Name

 

Aliso Emerald - Developer Partnership

 

See “Exhibit B - Budget” for proforma assumptions.

Alternate

 

Sell at Final Map & Grading Permit

 

Execute LOI & Development Agreement in December 2003.

Product

 

400 SFR Lots

 

Costs include those incurred by Emerald starting November 2003.

File Name

 

AEP CCA-AVGC 400

 

 

Date

 

1-Jan-2004

 

 

 

— LOT DESCRIPTION AND PRICING —

 

PRODUCT 

 

# OF LOTS

 

ACRES

 

AVERAGE
FINISHED LOT
PRICE

 

TOTAL LOT
SALES

 

RESIDENTIAL

 

 

 

 

 

 

 

 

 

3200 sf lots

 

140

 

80

 

195,500

 

27,370,000

 

4000 sf lots

 

130

 

0

 

278,375

 

36,188,750

 

5000 sf lots

 

130

 

0

 

335,750

 

43,647,500

 

Average Lot Premium

 

0

 

0

 

9,800

 

3,920,000

 

Discount to Shea

 

0

 

0

 

0

 

(22,225,250

)

TOTAL RESIDENTIAL LOTS

 

400

 

80.0

 

272,400

 

88,901,000

 

 

— FINANCIAL SUMMARY —

 

DESCRIPTION

 

TOTAL

 

% OF SALES

 

Base Lot Sales

 

88,901,000

 

100.00

%

Entitlement Costs

 

7,862,020

 

8.84

%

Credit on Performance Incent

 

(1,000,000

)

 

 

Development Costs

 

19,565,000

 

 

 

Closing Costs

 

2,000,273

 

 

 

Project Profit

 

60,473,708

 

91.16

%

 

— DISTRIBUTIONS —

 

TOTAL

 

CLUBCORP

 

EMERALD

 

Preferred Return

 

5,074,228

 

4,258,152

 

816,076

 

Net Proceeds @ Close

 

40,732,480

 

36,233,595

 

4,498,885

 

Performance Incentives

 

1,000,000

 

 

 

1,000,000

 

Land Contribution

 

13,200,000

 

13,200,000

 

—

 

Prior Investment Balance

 

467,000

 

 

 

467,000

 

Shea Incentive

 

—

 

 

 

0

 

CFD Incentive

 

—

 

 

 

0

 

Total Proceeds

 

60,473,708

 

53,691,747

 

6,781,960

 

 

 

 

TOTAL

 

CLUBCORP

 

EMERALD

 

Peak Investment Balance ($)

 

21,473,131

 

21,006,131

 

467,000

 

Peak Investment Balance (%)

 

100.00

%

97.83

%

2.17

%

Peak Investment Balance In Months

 

35

 

 

 

 

 

 

This proforma is a confidential and proprietary draft, for discussion purposes only. Emerald does not warrant or represent that the this proforma is or shall be an accurate projection of the actual performance or financial results of this project. This proforma is not for reliance or inducement and is distributed conditioned on this disclaimer.

 

— COST SUMMARY —

 

DESCRIPTION

 

TOTAL
COSTS

 

PER LOT

 

COMMISSION & CLOSING COSTS:

 

 

 

 

 

SALES COMMISSION

 

$

1,778,020

 

$

4,445

 

CLOSING COST

 

$

222,253

 

$

556

 

ENTITLEMENTS

 

 

 

 

 

Planning & Entitlement

 

$

850,000

 

$

1,625

 

Engineering & Consulting

 

$

1,400,000

 

$

3,500

 

Entitlement Contingency

 

$

750,000

 

$

1,875

 

INDIRECT CONSTRUCTION

 

 

 

 

 

CFD Expenses

 

$

750,000

 

$

1,875

 

Inspect, Audit, Acctg, Legal, Insurance

 

$

500,000

 

$

1,250

 

Development Agreement Costs

 

$

475,000

 

$

1,188

 

Indirect Cost Contingency

 

$

250,000

 

$

625

 

ADMIN FEES & INCENTIVE PYMT:

 

 

 

 

 

Cash Payment - Phase 1a

 

$

125,000

 

$

313

 

Cash Payment - Phase 1b

 

$

125,000

 

$

313

 

Cash Payment - Phase 2

 

$

125,000

 

$

313

 

Cash Payment - Phase 3

 

$

125,000

 

$

313

 

Cash Payment - Phase 4

 

$

250,000

 

$

625

 

Cash Payment - Phase 5

 

$

250,000

 

$

625

 

Asset Management Fee to Owner

 

$

234,000

 

$

585

 

Due Diligence

 

$

75,000

 

$

188

 

General & Administrative

 

$

1,778,020

 

$

4,445

 

DIRECT CONSTRUCTION:

 

 

 

 

 

On-slte Construction (In-tracts)

 

$

10,200,000

 

$

25,500

 

CFD Reimbursement - Infrastructure

 

$

(6,175,000

)

$

(15,438

)

Golf Course Improvements

 

$

500,000

 

$

1,250

 

Community Amenities / Parking Structure

 

$

3,000,000

 

$

7,500

 

CFD Reimbursement - Community Amenities

 

$

(1,500,000

)

$

(3,750

)

Roc / Amenities / Common Areas

 

$

1,000,000

 

$

2,500

 

Affordable Housing Fee (In lieu)

 

$

1,000,000

 

$

2,500

 

Fees: Off-sites, Spine Road Upgrades

 

$

9,500,000

 

$

23,750

 

Contingency

 

$

2,040,000

 

$

5,100

 

TOTAL DEVELOPMENT COSTS

 

29,427,293

 

73,568

 

PREFERRED RETURN

 

5,074,228

 

$

12,686

 

TOTAL COSTS, INCL PREFERRED RTN

 

34,501,520

 

86,254

 

 

 

EXHIBIT E-2 —BUDGET

 

Name

 

Aliso Emerald - Developer Partnership

 

 

 

 

 

 

Alternate

 

Sell at Final Map & Grading Permit

 

Project Start Date

 

Jan-04

 

 

Product

 

400 SFR Lots

 

Project Duration

 

36

 

 

File Name:

 

AEP CCA - AVGC 400

 

 

 

 

 

 

Date

 

1/1/2004

 

 

 

 

 

 

 

PRODUCT

 

Projected Home Price

 

# OF
D/U’S

 

ACRES

 

PRE-
DISCOUNT
LOT COST

 

ESTIMATED
LOT SALES

 

 

 

Month
to start

 

# of
Months

 

3200 sf lots

 

460,000

 

140

 

80

 

195,500

 

27,370,000

 

 

 

36

 

1

 

4000 sf lots

 

655,000

 

130

 

 

 

278,375

 

36,188,750

 

 

 

36

 

1

 

5000 sf lots

 

790,000

 

130

 

 

 

335,750

 

43,647,500

 

 

 

36

 

1

 

Average Lot Premium

 

 

 

 

 

 

 

9,800

 

3,920,000

 

 

 

36

 

1

 

 

 

 

 

 

 

 

 

—

 

 

 

 

 

36

 

1

 

TOTAL GROSS REVENUES

 

 

 

400

 

80

 

272,400

 

111,126,250

 

 

 

 

 

 

 

Discount to Shea

 

20

%

 

 

 

 

 

 

(22,225,250

)

1,778,020

 

 

 

 

 

NET LOT REVENUES

 

 

 

 

 

 

 

 

 

88,901,000

 

222,253

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FINISHED LOT SALES:

 

 

 

 

 

 

 

 

 

 

 

 

 

R. E. Brokerage Commission

 

 

 

(4,445

)

2.00

%

(1,778,020

)

36

 

1

 

Closing Costs

 

 

 

(556

)

0.25

%

(222,253

)

36

 

1

 

Municipal Fees

 

Accounted for in Home Costs

 

—

 

—

 

0

 

36

 

1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL NET REVENUES (Market value less Shea discount and closing costs)

 

 

 

 

 

86,900,728

 

 

 

 

 

 

 

 

 

 

Other
%

 

Other
$’s

 

Res
%

 

Residential
$’s

 

Per Month

 

Total
Project Cost

 

Month
to start

 

# of
Months

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTITLEMENTS

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Planning & Entitlement

 

0

%

0

 

100

%

 

 

 

 

650,000

 

1

 

10

 

Engineering & Consulting

 

0

%

0

 

100

%

0

 

 

 

1,400,000

 

7

 

11

 

Entitlement Contingency

 

0

%

0

 

100

%

0

 

 

 

750,000

 

12

 

23

 

 

 

 

 

 

 

 

 

 

 

Total Entitlements

 

2,800,000

 

 

 

 

 

INDIRECT CONSTRUCTION

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Expenses

 

0

%

0

 

100

%

0

 

 

 

750,000

 

3

 

18

 

Inspect, Audit, Acctg, Legal, Insurance

 

0

%

0

 

100

%

0

 

 

 

500,000

 

1

 

35

 

Development Agreement Costs

 

0

%

0

 

100

%

0

 

 

 

475,000

 

1

 

12

 

Indirect Cost Contingency

 

0

%

0

 

100

%

0

 

 

 

250,000

 

12

 

23

 

 

 

 

 

 

 

 

 

 

 

Total Indirect Construction

 

1,975,000

 

 

 

 

 

 

 

ADMIN FEES & INCENTIVE PYMT:

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash Payment - Phase 1a

 

0

%

0

 

100

%

0

 

0.00

%

 

 

125,000

 

1

 

1

 

Cash Payment - Phase 1b

 

0

%

0

 

100

%

0

 

0.00

%

 

 

125,000

 

6

 

1

 

Cash Payment - Phase 2

 

0

%

0

 

100

%

0

 

0.00

%

 

 

125,000

 

8

 

1

 

Cash Payment - Phase 3

 

0

%

0

 

100

%

0

 

0.00

%

 

 

125,000

 

12

 

1

 

Cash Payment - Phase 4

 

0

%

0

 

100

%

0

 

0.00

%

 

 

250,000

 

24

 

1

 

Cash Payment - Phase 5

 

0

%

0

 

100

%

0

 

0.00

%

 

 

250,000

 

35

 

1

 

Asset Management Fee to Owner

 

0

%

0

 

100

%

0

 

0.00

%

 

 

234,000

 

1

 

36

 

Due Diligence

 

0

%

0

 

100

%

0

 

0.00

%

per year

 

75,000

 

1

 

1

 

General & Administrative

 

0

%

0

 

100

%

0

 

2.00

%

Of Lot Sales

 

1,778,020

 

1

 

36

 

 

 

0

%

0

 

100

%

0

 

 

 

 

 

0

 

1

 

36

 

 

 

 

 

 

 

 

 

 

 

Total Admin Payments

 

3,087,020

 

 

 

 

 

DIRECT CONSTRUCTION:

 

0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On-site Construction (In-tracts)

 

0

%

0

 

100

%

0

 

25,500

 

per lot

 

10,200,000

 

36

 

1

 

CFD Reimbursement - Infrastructure

 

0

%

0

 

100

%

0

 

(15,438

)

per lot

 

(6,175,000

)

36

 

1

 

Golf Course Improvements

 

0

%

0

 

100

%

0

 

1,250

 

per lot

 

500,000

 

36

 

1

 

Community Amenities / Parking Structure

 

0

%

0

 

100

%

0

 

7,500

 

per lot

 

3,000,000

 

36

 

1

 

CFD Reimbursement - Community Amenities

 

0

%

0

 

100

%

0

 

(3,750

)

per lot

 

(1,500,000

)

36

 

1

 

Rec / Amenities / Common Areas

 

0

%

0

 

100

%

0

 

2,500

 

per lot

 

1,000,000

 

36

 

1

 

Affordable Housing Fee (In lieu)

 

0

%

0

 

100

%

0

 

2,500

 

per lot

 

1,000,000

 

36

 

1

 

Fees. Off-sites, Spine Road Upgrades

 

0

%

0

 

100

%

0

 

23,750

 

per lot

 

9,500,000

 

36

 

1

 

Contingency

 

0

%

0

 

100

%

0

 

5,100

 

per lot

 

2,040,000

 

36

 

1

 

 

 

0

%

0

 

100

%

0

 

—

 

per lot

 

0

 

1

 

36

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Estimated Direct Construction

 

27,240,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Estimated CFD Reimbursement

 

(7,675,000

)

 

 

 

 

 

 

 

 

 

 

 

 

Net Estimated Direct Construction

 

19,565,000

 

 

 

 

 

 

Notes on following page.

 

 

Notes:

 

Revenue Assumptions

400 single family residential lots, delivered in “final tract map and grading permit condition.”

Assumes bulk sales to Shea Homes at a discount from market rate.

Discount is in consideration for Shea’s lifting of deed restrictions on the re-zone area. Projection of a 20% discount of projected gross sales price of $111M is believed to be conservative. A more optimistic discount rate of 10%, which is used in the accompanying Homebuilder Proforma, would yield Shea a builder profit of 16.9% and an IRR of 34.5%, both of which are higher than returns typically achieved by homebuilders in this market. Partners will strive to minimize the ultimate discount to Shea. However, Investor should review the project based on a 20% discount, which may need to be paid during the entitlement phase. In this occurs, peak equity requirement could increase by as much as 300%.

 

Transaction Costs

Commissions and closing costs totaling 2.25% at sale of property.

Municipal Fees - Factored in Homebuilder Costs (see Homebuilder Proforma - Govt. Fees)

 

Acquisition

Land Value of $13,200,000 will accrue appreciation rate of 8% per annum simple interest. Paid from proceeds at close. See Exhibit E-5 Distributions for calculation of appreciation rate.

Pre-agreement project expenses pf $476,000 credited to Developers Prior Investment Balance. See Exhibit E-5 Distributions for calculation of interest at 8%.

 

Indirect Construction

CFD Expenses - Bond Counsel, prepaid underwriter fees, credit enhancement costs, other formation costs.

Development Agreement - Legal costs, consultants, fiscal analysis, etc.

 

Administrative

General & Administrative - Paid to EDG in monthly installments up to 36 months. Based on 2% of projected revenues.

Due Diligence - Formation, legal and initial due diligence costs of Emerald and Investment Partner, reimbursed from initial funding.

Asset Management - Paid to Owner at $6500/month for up to 36 months

 

Direct Construction Assumptions (for calculating finished lot value versus paper lot value)

Includes development construction costs for 400 finished “bluetop” lots, and an 18 hole golf course. Cost of permanent clubhouse not included.

In-Tracts - Preliminary estimate based on Wagner Halladay, Inc., with an additional budgeted Contingency of 20% (see separate line item).

CFD Reimbursement Infrastructure - public bond funds to partially reimburse homebuilder for infrastructure expenses.

Golf Course Improvements - $500,000 for rerouting one hole. Actual cost of permanent clubhouse paid by ClubCorp from land sale proceeds.

Community Amenities - budget for additional recreational amenities and a parking structure as incentive to City for project approvals.

CFD Reimbursement Community Amenities - public bond funds to partially reimburse homebuilder for additional amenities at project.

Rec / Amenities / Common Areas - Enhancement to budgeted parks, trail system, entry features, monumentation, gates, etc.

In Lieu Fees - in the event City requires contribution from project for future affordable housing requirements that may be required of the City.

Additional Fees, Spine Road Upgrades, Off-site Improvements - additional expenses that may be required as condition of development agreement w/ City.

Contingency - 20% of In-tract costs.

 

 

Aliso Viejo Golf Course Community
HOMEBUILDER CASHFLOW PROJECTION

 

PROJECT:

 

Aliso Vlejo Golf Course

 

 

 

 

 

 

 

 

 

PREPARED:

 

11/25/03

 

 

Aliso Emerald Partners LLC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REVENUE

 

Total

 

Average

 

Plan 1
3200 sf lot

 

Plan 2
4000 sf lot

 

Plan 3
5000 sf lot

 

Plan 4

 

Plan 5

 

Plan 6

 

Plan 7

 

Plan 8

 

Number of Units

 

400

 

 

 

140

 

130

 

130

 

0

 

0

 

0

 

0

 

0

 

Square Footage

 

1,099,500

 

2,749

 

2,050

 

2,900

 

3,350

 

0

 

0

 

0

 

0

 

0

 

Base Price

 

264,150,000

 

660,375

 

480,000

 

685,000

 

830,000

 

0

 

0

 

0

 

0

 

0

 

Base Price per S.F.

 

 

 

240,25

 

234.15

 

236.21

 

247.76

 

0.00

 

0.00

 

0.00

 

0.00

 

0.00

 

Lot Premiums

 

8,000,000

 

20,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Buyer Options

 

13,207,500

 

33,019

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales Revenue

 

285,357,500

 

713,394

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Inflated Sales Revenue

 

285,357,500

 

713,394

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXPENSES

 

Total

 

Per Unit

 

Per S.F.

 

% of Sales

 

 

 

 

 

 

 

 

 

 

 

Land Acquisition

 

100,013,760

 

250,034

 

90.96

 

35.05

%

Land Closing Costs

 

0

 

0

 

0.00

 

0.00

%

Site Improvements 1

 

11,890,000

 

29,725

 

10.81

 

4.17

%

Site Improvements 2

 

8,920,000

 

22,300

 

8.11

 

3.13

%

Finished Lot Cost

 

120,823,760

 

302,059

 

109.89

 

42.34

%

 

 

 

 

 

 

 

 

 

 

Indirect: Construction

 

4,562,925

 

11,407

 

4.15

 

1.60

%

Direct Construction

 

65,970,000

 

164,925

 

60.00

 

23.12

%

Options Cost

 

10,159,615

 

25,399

 

9.24

 

3.66

%

Finance Cost

 

12,597,993

 

31,495

 

11.46

 

4.41

%

Property Taxes

 

2,662,176

 

6,655

 

2.42

 

0.93

%

Capitalized Marketing

 

1,025,000

 

2,563

 

0.93

 

0.36

%

HOA & Legal

 

132,520

 

331

 

0.12

 

0.05

%

Insurance Cost

 

2,961,575

 

7,404

 

2.69

 

1.04

%

Overhead and G&A

 

8,560,725

 

21,402

 

7.79

 

3.00

%

Sales Expense

 

4,823,526

 

12,059

 

4.39

 

1.69

%

Warranty Reserve

 

2,853,575

 

7,134

 

2.60

 

1.00

%

 

 

 

 

 

 

 

 

 

 

Total Expenses

 

237,133,391

 

592,833

 

215.67

 

83.10

%

Inflated: Total Expenses

 

237,133,391

 

592,833

 

215.67

 

83.10

%

 

PROFIT

 

Total

 

Per Unit

 

Per S.F.

 

% of Sales

 

 

 

 

 

 

 

 

 

 

 

Gross Profit

 

65,594,935

 

163,987

 

59.66

 

22.99

%

Operating Profit

 

59,746,409

 

149,366

 

54.34

 

20.94

%

Net Profit

 

48,224,109

 

120,560

 

43.86

 

16.90

%

 

RETURN

 

Internal Rate of Return

 

34.50

%

Peak Capital Requirement

 

68,895,644

 

 

ASSUMPTIONS

 

Cashflow Start Date

 

10/01/06

 

Number of Models

 

3

 

 

 

 

 

Cost per Model

 

400,000

 

Month Models are Started

 

1

 

Other Initial Marketing Costs

 

425,000

 

Month Production is Started

 

2

 

Model Recovery Rate

 

50.00

%

Project Term in Months

 

39

 

 

 

 

 

 

 

 

 

Monthly HOA Dues per Unit

 

120

 

Average Lot Premium

 

20,000

 

HOA Legal Cost

 

100,000

 

Premiums as % of Base Price

 

3.03

%

 

 

 

 

 

 

 

 

Course of Const. Insurance

 

270

 

Options as % of Base Price

 

5.00

%

General Liability Insurance

 

1.00

%

Options Mark-Up

 

30.00

%

 

 

 

 

 

 

 

 

Division Overhead per Unit

 

0

 

Base Land Acquisition per Lot

 

277,816

 

Corporate Overhead as %

 

3.00

%

Deed Release Discount

 

-10

%

 

 

 

 

Total Land Closing Costs

 

0.00

%

 

 

 

 

 

 

 

 

Monthly Advertising

 

20,000

 

#1-Infrastructure w/ CRD credit

 

29,725

 

Monthly Model and Office Carry

 

9,200

 

#2-Govt. Fees

 

22,300

 

Sales & Closing Costs per Unit

 

9,631

 

 

 

 

 

Master Marketing Fee as %

 

0.00

%

Indirect Construction per S.F.

 

4.15

 

 

 

 

 

Direct Construction per S.F.

 

60.00

 

Warranty Reserve as %

 

1.00

%

 

 

 

 

 

 

 

 

Builder Cost of Capital

 

5.75

%

Annual Revenue Inflation

 

0.00

%

 

 

 

 

Annual Expense Inflation

 

0.00

%

Base Property Tax Rate

 

1.35

%

 

 

 

 

Other Annual Property Tax

 

0

 

Average Monthly Sales Rate

 

12.5

 

80.00 acres

 

1,250,172

 

price per acre

 

5.0 du/ac

 

 

NOTES

 

 

EXHIBIT E-4 —TOTAL PROJECT CASH FLOW

 

Name

Aliso Emerald - Developer Partnership

Alternate

Sell at Final Map & Grading Permit

Product

400 SFR Lots

File Name

AEP CCA-AVGC 400

Date

1-Jan-2004

 

 

 

PROJECT
TOTAL

 

Jan-2004

 

Feb-2004

 

Mar-2004

 

Apr-2004

 

May-2004

 

Jun-2004

 

Jul-2004

 

Aug-2004

 

Sep-2004

 

Oct-2004

 

Nov-2004

 

Dec-2004

 

 

 

 

 

1

 

2

 

3

 

4

 

5

 

6

 

7

 

8

 

9

 

10

 

11

 

12

 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3200 sf lots

 

27,370,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

4000 sf lots

 

36,188,750

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

5000 sf lots

 

43,647,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Average Lot Premium

 

3,920,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(22,225,250

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales Commission & Closing

 

(1,778,020

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Closing Costs

 

(222,233

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Municipal Fees

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL REVENUE

 

86,900,728

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTITLEMENTS

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Planning & Entitlement

 

650,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

0

 

0

 

Engineering & Consulting

 

1,400,000

 

0

 

0

 

0

 

0

 

0

 

0

 

127,273

 

127,273

 

127,273

 

127,273

 

127,273

 

127,273

 

Entitlement Contingency

 

750,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

32,609

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

INDIRECT CONSTRUCTION

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Expenses

 

750,000

 

0

 

0

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41.667

 

Inspect, Audit, Acctg, Legal, Insurance

 

500,000

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

Development Agreement Costs

 

475,000

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

Indirect Cost Contingency

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

10,870

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ADMIN FEES & INCENTIVE PYMT:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1a

 

125,000

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1b

 

125,000

 

0

 

0

 

0

 

0

 

0

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 2

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

125,000

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 3

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

125,000

 

Cash Payment - Phase 4

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 5

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Asset Management Fee to Owner

 

234,000

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

Due Diligence

 

75,000

 

75,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

General & Administrative

 

1,778,020

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

DIRECT CONSTRUCTION:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

On-site Construction (in-tracts)

 

10,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Reimbursement - Infrastructure

 

(6,175,000

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Golf Course Improvements

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

. 0

 

0

 

0

 

0

 

0

 

Community Amenities / Parking Structure

 

3,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Reimbursement-Community Amenities

 

(1,500,000

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Rec / Amenities / Common Areas

 

1,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Affordable Housing Fee (in lieu)

 

1,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Fees Off-sites, Spine Road Upgrades

 

9,500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Contingency

 

2,040,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL PROJECT COSTS

 

27,427,020

 

374,756

 

174,758

 

216,425

 

216,425

 

216,425

 

341,425

 

343,698

 

468,698

 

343,698

 

343,698

 

278,698

 

447,176

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROJECT CASH FLOW

 

59,473,708

 

(374,758

)

(174,758

)

(216,425

)

(216,425

)

(216,425

)

(341,425

)

(343,698

)

(468,698

)

(343,698

)

(343,698

)

(278,698

)

(447,176

)

CUMULATIVE CASH REQUIREMENTS

 

 

 

374,758

 

549,517

 

765,942

 

982,367

 

1,198,792

 

1,540,218

 

1,883,916

 

2,352,613

 

2,696,311

 

3,040,009

 

3,318,707

 

3,765,883

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CONTRIBUTION

 

7,806,131

 

374,758

 

174,758

 

216,425

 

216,425

 

216,425

 

341,425

 

343,698

 

468,698

 

343,698

 

343,698

 

278,698

 

447,176

 

EQUITY DISTRIBUTION

 

(67,279,838

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

NET EQUITY BALANCE

 

 

 

374,758

 

549,517

 

765,942

 

982,367

 

1,198,792

 

1,540,218

 

1,883,916

 

2,352,613

 

2,696,311

 

3,040,009

 

3,318,707

 

3,765,883

 

 

 

EXHIBIT E-4 — TOTAL PROJECT CASH FLOW

 

Name

Aliso Emerald - Developer Partnership

Alternate

Sell at Final Map & Grading Permit

Product

400 SFR Lots

File Name

AEP CCA - AVGC 400

Date

1-Jan-2004

 

 

 

 

PROJECT
TOTAL

 

Jan-2005

 

Feb-2005

 

Mar-2005

 

Apr-2005

 

May-2005

 

Jun-2005

 

Jul-2005

 

Aug-2005

 

Sep-2005

 

Oct-2005

 

Nov-2005

 

Dec-2005

 

 

 

 

 

13

 

14

 

15

 

16

 

17

 

18

 

19

 

20

 

21

 

22

 

23

 

24

 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3200 of lots

 

27,370,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

4000 sf lots

 

36,188,750

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

5000 sf lots

 

43,647,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Average Lot Premium

 

3,920,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(22,225,250

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Sales Commission & Closing

 

(1,778,020

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Closing Costs

 

(222,253

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Municipal Fees

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

TOTAL REVENUE

 

86,900,728

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTITLEMENTS

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Planning & Entitlement

 

650,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Engineering & Consulting

 

1,400,000

 

127,273

 

127,273

 

127,273

 

127,273

 

127,273

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Entitlement Contingency

 

750,000

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

INDIRECT CONSTRUCTION

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Expenses

 

750,000

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

0

 

0

 

0

 

0

 

Inspect, Audit, Acctg, Legal, Insurance

 

500,000

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

Development Agreement Costs

 

475,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Indirect Cost Contingency

 

250,000

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ADMIN FEES & INCENTIVE PYMT:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment- Phase 1a

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1b

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 2

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment- Phase 3

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 4

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

250,000

 

Cash Payment - Phase 5

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Asset Management Fee to Owner

 

234,000

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

Due Diligence

 

75,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

General & Administrative

 

1,778,020

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

DIRECT CONSTRUCTION:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

On-site Construction (In-tracts)

 

10,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Reimbursement- Infrastructure

 

(6,175,000

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Golf Course Improvements

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Community Amenities / Parking Structure

 

3,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Reimbursement - Community Amenities

 

(1,500,000

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Rec / Amenities / Common Areas

 

1,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Affordable Housing Fee (In lieu)

 

1,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Fees, Off-sites, Spine Road Upgrades

 

9,500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Contingency

 

2,040,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

TOTAL PROJECT COSTS

 

27,427,020

 

282,593

 

282,593

 

282,593

 

282,593

 

282,593

 

155,320

 

155,320

 

155,320

 

113,653

 

113,653

 

113,653

 

363,653

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROJECT CASH FLOW

 

59,473,708

 

(282,593

)

(282,593

)

(282,593

)

(282,593

)

(282,593

)

(155,320

)

(155,320

)

(155,320

)

(113,653

)

(113,653

)

(113,653

)

(363,653

)

CUMULATIVE CASH REQUIREMENTS

 

 

 

4,048,476

 

4,331,069

 

4,613,662

 

4,896,254

 

5,178,847

 

5,334,167

 

5,489,487

 

5,644,808

 

5,758,461

 

5,872,114

 

5,985,768

 

6,349,421

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CONTRIBUTION

 

7,806,131

 

282,593

 

282,593

 

282,593

 

282,593

 

282,593

 

155,320

 

155,320

 

155,320

 

113,653

 

113,653

 

113,653

 

363,653

 

EQUITY DISTRIBUTION

 

(67,279,838

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

NET EQUITY BALANCE

 

 

 

4,048,476

 

4,331,069

 

4,613,662

 

4,896,254

 

5,178,847

 

5,334,167

 

5,489,487

 

5,644,808

 

5,758,461

 

5,872,114

 

5,985,768

 

6,349,421

 

 

 

EXHIBIT E-4 — TOTAL PROJECT CASH FLOW

 

Name

Aliso Emerald - Developer Partnership

Alternate

Sell at Final Map & Grading Permit

Product

400 SFR Lots

File Name

AEP CCA - AVGC 400

Date

1-Jan-2004

 

 

 

 

PROJECT
TOTAL

 

Jan-2006

 

Feb-2006

 

Mar-2006

 

Apr-2006

 

May-2006

 

Jun-2006

 

Jul-2006

 

Aug-2006

 

Sep-2006

 

Oct-2006

 

Nov-2006

 

Dec-2006

 

 

 

 

 

25

 

26

 

27

 

28

 

29

 

30

 

31

 

32

 

33

 

34

 

35

 

36

 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3200 sf lots

 

27,370,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

27,370,000

 

4000 sf lots

 

36,188,750

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

36,188,750

 

5000 sf lots

 

43,647,500

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

43,647,500

 

Average Lot Premium

 

3,920,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

3,920,000

 

0

 

(22,225,250

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

##########

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales Commission & Closing

 

(1,778,020

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(1,778,020

)

Closing Costs

 

(222,253

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(222,253

)

Municipal Fees

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL REVENUE

 

86,900,728

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

86,900,728

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTITLEMENTS

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Planning & Entitlement

 

650,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Engineering & Consulting

 

1,400,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Entitlement Contingency

 

750,000

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

32,609

 

0

 

0

 

*

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

INDIRECT CONSTRUCTION

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Expenses

 

750,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Inspect, Audit, Acctg, Legal, Insurance

 

500,000

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

0

 

Development Agreement Costs

 

475,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Indirect Cost Contingency

 

250,000

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

10,870

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ADMIN FEES & INCENTIVE PYMT:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1a

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 1b

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 2

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 3

 

125,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 4

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Cash Payment - Phase 5

 

250,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

250,000

 

0

 

Asset Management Fee to Owner

 

234,000

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

Due Diligence

 

75,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

General & Administrative

 

1,778,020

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

-

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

DIRECT CONSTRUCTION:

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

On-site Construction (In-tracts)

 

10,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

10,200,000

 

CFD Reimbursement - Infrastructure

 

(6,175,000

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(6,175,000

)

Golf Course Improvements

 

500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

500,000

 

Community Amenities / Parking Structure

 

3,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

3,000,000

 

CFD Reimbursement - Community Amenities

 

(1,500,000

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

(1,500,000

)

Rec / Amenities / Common Areas

 

1,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

1,000,000

 

Affordable Housing Fee (In lieu)

 

1,000,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

1,000,000

 

Fees, Off-sites, Spine Road Upgrades

 

9,500,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

9,500,000

 

Contingency

 

2,040,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

2,040,000

 

*

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL PROJECT COSTS

 

27,427,020

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

320,175

 

19,620,889

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROJECT CASH FLOW

 

59,473,708

 

(113,653

)

(113,653

)

(113,653

)

(113,653

)

(113,653

)

(113,653

)

(113,653

)

(113,653

)

(113,653

)

(113,653

)

(320,175

)

67,279,838

 

CUMULATIVE CASH REQUIREMENTS

 

 

 

6,463,075

 

6,576,728

 

6,690,381

 

6,804,035

 

6,917,688

 

7,031,342

 

7,144,995

 

7,258,649

 

7,372,302

 

7,485,955

 

7,806,131

 

##########

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CONTRIBUTION

 

7,806,131

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

320,175

 

0

 

EQUITY DISTRIBUTION

 

(67,279,838

)

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

##########

 

NET EQUITY BALANCE

 

 

 

6,463,075

 

6,576,728

 

6,690,381

 

6,804,035

 

6,917,688

 

7,031,342

 

7,144,995

 

7,258,649

 

7,372,302

 

7,485,955

 

7,806,131

 

##########

 

 

 

EXHIBIT E-5 — EQUITY, PREFERRED RETURN, PROFIT DISTRIBUTIONS

 

Name

Aliso Emerald - Developer Partnership

 

Investor

 

INVESTOR

 

CLUBCORP

 

EMERALD

 

TOTAL

 

Alternate

Sell at Final Map & Grading Permit

 

% Investment Capital

 

100

%

0.00

%

0

%

100

%

Product

400 SFR Lots

 

Total Investment

 

7,806,131

 

0

 

467,000

 

8,273,131

 

File Name

AEP CCA - AVGC 400

 

Preferred Return

 

8.00

%

8.00

%

8.00

%

 

 

Date

1-Jan-2004

 

 

 

 

 

 

 

 

 

0.00

%

 

 

0

Actual Percentage Interest

 

36.50

%

50.00

%

13.50

%

100.00

%

 

 

 

Max Investment Balance

 

7,806,131

 

13,200,000

 

467,000

 

21,473,131

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY, PREFERRED RETURN, PROFIT DISTRIBUTIONS

 

 

 

PROJECT
TOTAL

 

Jan-2004

 

Jan-2004

 

Mar-2004

 

Apr-2004

 

May-2004

 

Jun-2004

 

Jul-2004

 

Aug-2004

 

Sep-2004

 

Oct-2004

 

Nov-2004

 

Dec-2004

 

 

 

 

 

 

 

1

 

2

 

3

 

4

 

5

 

6

 

7

 

8

 

9

 

10

 

11

 

12

 

Investor Equity Contributed

 

 

 

7,806,131

 

374,758

 

174,758

 

216,425

 

216,425

 

216,425

 

341,425

 

343,698

 

468,698

 

343,698

 

343,698

 

278,698

 

447,176

 

Emerald Earned Equity Amounts

 

 

 

4,498,885

 

485,987

 

 

 

 

 

 

 

 

 

485,987

 

 

 

1,096,974

 

 

 

 

 

 

 

1,096,974

 

Emerald Prior Investment Balance Input

 

 

 

 

 

467,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shea Incentive Payment

 

 

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Incentive Payment

 

 

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Repayments Available

 

 

 

67,279,838

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AVAILABLE FOR DISTRIBUTION

 

 

 

67,279,838

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Project Expenses

 

 

 

7,806,131

 

374,758

 

174,758

 

216,425

 

216,425

 

216,425

 

341,425

 

343,698

 

468,698

 

343,698

 

343,698

 

278,698

 

447,176

 

Clubcorp Project Expense Repayments

 

 

 

7,806,131

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Clubcorp Project Expense Balance

 

 

 

 

 

374,758

 

549,517

 

765,942

 

982,367

 

1,198,792

 

1,540,218

 

1,883,916

 

2,352,813

 

2,696,311

 

3,040,009

 

3,318,707

 

3,765,883

 

Clubcorp Preferred Return - EARNED

 

 

 

1,090,152

 

 

 

2,498

 

3,663

 

5,106

 

6,549

 

7,992

 

10,268

 

12,559

 

15,684

 

17,975

 

20,267

 

22,125

 

Clubcorp Preferred Return - PAID

 

 

 

1,090,152

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Clubcorp Preferred Return Balance

 

 

 

 

 

0

 

2,498

 

6,162

 

11,268

 

17,817

 

25,809

 

36,077

 

48,637

 

64,321

 

82,296

 

102,563

 

124,688

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Land Contribution

 

 

 

13,200,000

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Repayments

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Balance

 

 

 

 

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

ClubCorp Preferred Return - EARNED

 

 

 

3,168,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

ClubCorp Preferred Return - PAID

 

 

 

3,168,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Preferred Return Balance

 

 

 

 

 

88,000

 

176,000

 

264,000

 

352,000

 

440,000

 

528,000

 

616,000

 

704,000

 

792,000

 

880,000

 

968,000

 

1,056,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Earned Equity Input

 

 

 

4,498,885

 

485,987

 

0

 

0

 

0

 

0

 

485,987

 

0

 

1,096,974

 

0

 

0

 

0

 

1,096,974

 

Emerald Earned Equity Repayment

 

 

 

4,498,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Earned Equity Balance

 

 

 

 

 

485,987

 

485,987

 

485,987

 

485,987

 

485,987

 

971,974

 

971,974

 

2,068,949

 

2,068,949

 

2,068,949

 

2,068,949

 

3,165,923

 

Emerald Preferred Return - EARNED

 

 

 

703,996

 

 

 

3,240

 

3,240

 

3,240

 

3,240

 

3,240

 

6,480

 

6,480

 

13,793

 

13,793

 

13,793

 

13,793

 

Emerald Preferred Return - PAID

 

 

 

703,996

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

3,240

 

6,480

 

9,720

 

12,960

 

16,200

 

22,679

 

29,159

 

42,952

 

56,745

 

70,538

 

84,331

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

467,000

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance Repayment

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance

 

 

 

 

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

Emerald Preferred Return - EARNED

 

 

 

112,080

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

Emerald Preferred Return - PAID

 

 

 

112,080

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

3,113

 

6,227

 

9,340

 

12,453

 

15,567

 

18,680

 

21,793

 

24,907

 

28,020

 

31,133

 

34,247

 

37,360

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Shea Incentive Balance Input

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Payment

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald CFD Incentive Balance Input

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Payment

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROCEEDS FOR DISTRIBUTION

 

 

 

40,732,480

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total ClubCorp Percentage Interest

 

86.5

%

36,233,595

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Emerald Percentage Interest*

 

13.5

%

4,198,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

EXHIBIT E-5 — EQUITY, PREFERRED RETURN, PROFIT DISTRIBUTIONS

 

Name

Allso Emerald - Developer Partnership

Alternate

Sell at Final Map & Grading Permit

Product

400 SFR Lots

File Name

AEP CCA - AVGC 400

Date

1-Jan-2004

 

EQUITY, PREFERRED RETURN,
PROFIT DISTRIBUTIONS

 

 

 

PROJECT
TOTAL

 

Jan-2005

 

Feb-2005

 

Mar-2005

 

Apr-2005

 

May-2005

 

Jun-2005

 

Jul-2005

 

Aug-2005

 

Sep-2005

 

Oct-2005

 

Nov-2005

 

Dec-2005

 

 

 

 

 

 

 

13

 

14

 

15

 

16

 

17

 

18

 

19

 

20

 

21

 

22

 

23

 

24

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Investor Equity Contributed

 

 

 

7,806,131

 

282,593

 

282,593

 

282,593

 

282,593

 

282,593

 

155,320

 

155,320

 

155,320

 

113,653

 

113,653

 

113,653

 

363,653

 

Emerald Earned Equity Amounts

 

 

 

4,498,885

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

971,974

 

360,987

 

Emerald Prior Investment Balance Input

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shea Incentive Payment

 

 

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Incentive Payment

 

 

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Repayments Available

 

 

 

67,279,838

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AVAILABLE FOR DISTRIBUTION

 

 

 

67,279,838

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Project Expenses

 

 

 

7,806,131

 

282,593

 

282,593

 

282,593

 

282,593

 

282,593

 

155,320

 

155,320

 

155,320

 

113,653

 

113,653

 

113,653

 

363,653

 

Clubcorp Project Expense Repayments

 

 

 

7,806,131

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Clubcorp Project Expense Balance

 

 

 

 

 

4,048,476

 

4,331,069

 

4,613,662

 

4,896,254

 

5,178,847

 

5,334,167

 

5,489,487

 

5,644,808

 

5,758,461

 

5,872,114

 

5,985,768

 

6,349,421

 

Clubcorp Preferred Return - EARNED

 

 

 

1,090,152

 

25,106

 

26,990

 

26,874

 

30,758

 

32,642

 

34,526

 

35,561

 

36,597

 

37,632

 

38,390

 

39,147

 

39,905

 

Clubcorp Preferred Return - PAID

 

 

 

1,090,152

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Clubcorp Preferred Return Balance

 

 

 

 

 

149,794

 

176,783

 

205,657

 

236,415

 

269,057

 

303,582

 

339,143

 

375,740

 

413,372

 

451,762

 

490,909

 

530,814

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Land Contribution

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Repayments

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Land Balance

 

 

 

 

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

ClubCorp Preferred Return - EARNED

 

 

 

3,168,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

ClubCorp Preferred Return - PAID

 

 

 

3,168,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

ClubCorp Preferred Return Balance

 

 

 

 

 

1,144,000

 

1,232,000

 

1,320,000

 

1,408,000

 

1,496,000

 

1,584,000

 

1,672,000

 

1,760,000

 

1,848,000

 

1,936,000

 

2,024,000

 

2,112,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Earned Equity Input

 

 

 

4,498,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

971,974

 

360,987

 

Emerald Earned Equity Repayment

 

 

 

4,498,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Earned Equity Balance

 

 

 

 

 

3,165,923

 

3,165,923

 

3,165,923

 

3,165,923

 

3,165,923

 

3,165,923

 

3,165,923

 

3,165,923

 

3,165,923

 

3,165,923

 

4,137,898

 

4,498,885

 

Emerald Preferred Return - EARNED

 

 

 

703,996

 

21,106

 

21,106

 

21,106

 

21,106

 

21,106

 

21,106

 

21,106

 

21,106

 

21,106

 

21,106

 

21,106

 

27,586

 

Emerald Preferred Return - PAID

 

 

 

703,996

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

105,437

 

126,544

 

147,650

 

168,756

 

189,862

 

210,968

 

232,074

 

253,180

 

274,287

 

295,393

 

316,499

 

344,085

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance Repayment

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance

 

 

 

 

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

Emerald Preferred Return - EARNED

 

 

 

112,080

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

Emerald Preferred Return - PAID

 

 

 

112,080

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

40,473

 

43,587

 

46,700

 

49,813

 

52,927

 

56,040

 

59,153

 

62,267

 

65,380

 

68,493

 

71,607

 

74,720

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Shea Incentive Balance Input

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Payment

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald CFD Incentive Balance Input

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Payment

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROCEEDS FOR DISTRIBUTION

 

 

 

40,732,480

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total ClubCorp Percentage Interest

 

86.5

%

36,233,595

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Emerald Percentage Interest*

 

13.5

%

4,498,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

EXHIBIT E-5 — EQUITY, PREFERRED RETURN, PROFIT DISTRIBUTIONS

 

Name

Allso Emerald - Developer Partnership

Alternate

Sell at Final Map & Grading Permit

Product

400 SFR Lots

File Name

AEP CCA - AVGC 400

Date

1-Jan-2004

 

EQUITY, PREFERRED RETURN,
PROFIT DISTRIBUTIONS

 

 

 

PROJECT
TOTAL

 

Jan-2006

 

Feb-2006

 

Mar-2006

 

Apr-2006

 

May-2006

 

Jun-2006

 

Jul-2006

 

Aug-2006

 

Sep-2006

 

Oct-2006

 

Nov-2006

 

Dec-2006

 

 

 

 

 

 

 

25

 

26

 

27

 

28

 

29

 

30

 

31

 

32

 

33

 

34

 

35

 

36

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Investor Equity Contributed

 

 

 

7,806,131

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

320,175

 

0

 

Emerald Earned Equity Amounts

 

 

 

4,498,885

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shea Incentive Payment

 

 

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Incentive Payment

 

 

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Repayments Available

 

 

 

67,279,838

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

67,279,838

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AVAILABLE FOR DISTRIBUTION

 

 

 

67,279,838

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

67,279,838

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Project Expenses

 

 

 

7,806,131

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

113,653

 

320,175

 

0

 

Clubcorp Project Expense Repayments

 

 

 

7,808,131

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

7,806,131

 

Clubcorp Project Expense Balance

 

 

 

 

 

6,463,075

 

6,576,728

 

6,690,381

 

6,804,035

 

6,917,688

 

7,031,342

 

7,144,995

 

7,258,649

 

7,372,302

 

7,485,955

 

7,806,131

 

0

 

Clubcorp Preferred Return - EARNED

 

 

 

1,090,152

 

42,329

 

43,087

 

43,845

 

44,603

 

45,360

 

46,118

 

46,876

 

47,633

 

48,391

 

49,149

 

49,906

 

52,041

 

Clubcorp Preferred Return - PAID

 

 

 

1,090,152

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

1,090,152

 

Clubcorp Preferred Return Balance

 

 

 

 

 

573,144

 

616,231

 

660,076

 

704,678

 

750,039

 

796,157

 

843,032

 

890,665

 

939,056

 

988,205

 

1,038,111

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Land Contribution

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Clubcorp Land Repayments

 

 

 

13,200,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

13,200,000

 

ClubCorp Land Balance

 

 

 

 

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

13,200,000

 

0

 

ClubCorp Preferred Return - EARNED

 

 

 

3,168,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

88,000

 

ClubCorp Preferred Return - PAID

 

 

 

3,168,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

3,168,000

 

ClubCorp Preferred Return Balance

 

 

 

 

 

2,200,000

 

2,288,000

 

2,376,000

 

2,464,000

 

2,552,000

 

2,640,000

 

2,728,000

 

2,816,000

 

2,904,000

 

2,992,000

 

3,080,000

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Earned Equity Input

 

 

 

4,498,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Earned Equity Repayment

 

 

 

4,498,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

4,498,885

 

Emerald Earned Equity Balance

 

 

 

 

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

4,498,885

 

0

 

Emerald Preferred Return - EARNED

 

 

 

703,996

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

29,993

 

Emerald Preferred Return - PAID

 

 

 

703,996

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

703,996

 

Emerald Preferred Return Balance

 

 

 

 

 

374,077

 

404,070

 

434,063

 

464,055

 

494,048

 

524,040

 

554,033

 

584,025

 

614,018

 

644,011

 

674,003

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Prior Investment Balance Input

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Prior Investment Balance Repayment

 

 

 

467,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

467,000

 

Emerald Prior Investment Balance

 

 

 

 

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

467,000

 

0

 

Emerald Preferred Return - EARNED

 

 

 

112,080

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

3,113

 

Emerald Preferred Return - PAID

 

 

 

112,080

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

112,080

 

Emerald Preferred Return Balance

 

 

 

 

 

77,833

 

80,947

 

84,060

 

87,173

 

90,287

 

93,400

 

96,513

 

99,627

 

102,740

 

105,853

 

108,967

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Shea Incentive Balance Input

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Payment

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Shea Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald CFD Incentive Balance Input

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Payment

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald CFD Incentive Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - EARNED

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return - PAID

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Emerald Preferred Return Balance

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET PROCEEDS FOR DISTRIBUTION

 

 

 

40,732,480

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

40,732,480

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total ClubCorp Percentage Interest

 

86.5

%

36,233,595

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

35,233,595

 

 

 

 

 

 

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Emerald Percentage Interest*

 

13.5

%

4,498,885

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

5,498,885

 

 

 

Aliso Vlejo Golf Course Project

Exhibit E-6 - Project Cash Flow Summary

 

 

 

 

1 - 12

 

Months
13 - 24

 

25 - 36

 

Total

 

Cash Flow

 

 

 

 

 

 

 

 

 

 

Revenues

 

 

0

 

0

 

111,126,250

 

111,126,250

 

Less:

 

 

 

 

 

 

 

 

 

 

Estimated Discount to Shea

 

 

0

 

0

 

(22,225,250

)

(22,225,250

)

Net Lot Revenues

 

 

0

 

0

 

88,901,000

 

88,901,000

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

Closing Costs

 

 

0

 

0

 

(2,000,273

)

(2,000,273

)

Net Revenues

 

 

0

 

0

 

86,900,728

 

86,900,728

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

Base Purchase Price (Land)

 

 

13,200,000

 

 

 

 

 

13,200,000

 

Previous Investment Balance

 

 

467,000

 

 

 

 

 

467,000

 

Incentive/“Equity Prepayments” to Developer @

 

 

500,000

 

250,000

 

250,000

 

1,000,000

 

Total Acquisition Costs

2.5

%

14,167,000

 

250,000

 

250,000

 

14,667,000

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

Entitlement Costs (exel. Financing Costs)

 

 

1,446,245

 

1,027,668

 

326,087

 

2,800,000

 

 

 

 

 

 

 

 

 

 

 

 

Indirect Construction

 

 

 

 

 

 

 

 

 

 

CFD Expenses

 

 

416,667

 

333,333

 

0

 

750,000

 

Inspection/Audit/Legal/Acctng

 

 

171,429

 

171,429

 

157,143

 

500,000

 

Development Agreement Costs

 

 

475,000

 

0

 

0

 

475,000

 

Indirect Contingency

 

 

10,870

 

130,435

 

108,696

 

250,000

 

Total Indirect Construction

 

 

1,073,965

 

635,197

 

265,839

 

1,975,000

 

 

 

 

 

 

 

 

 

 

 

 

Administrative Fees

 

 

 

 

 

 

 

 

 

 

G&A - Administrative Fees - Developer

 

 

592,673

 

592,673

 

592,673

 

1,778,020

 

Asset Management Fees - Owner

 

 

78,000

 

78,000

 

78,000

 

234,000

 

Developer’s Expenses (11/03-12/03)

 

 

75,000

 

0

 

0

 

75,000

 

Total Administrative

 

 

745,673

 

670,673

 

670,673

 

2,087,020

 

 

 

 

 

 

 

 

 

 

 

 

Direct Construction

 

 

 

 

 

 

 

 

 

 

On-site Construction (In-tract)

 

 

0

 

0

 

10,200,000

 

10,200,000

 

CFD Reimbursement (Infrastructure)

 

 

0

 

0

 

(6,175,000

)

(6,175,000

)

Golf Course Improvements

 

 

0

 

0

 

500,000

 

500,000

 

Community Amenities (Parking Structure)

 

 

0

 

0

 

3,000,000

 

3,000,000

 

CFD Reimbursements (Community Amentities)

 

 

0

 

0

 

(1,500,000

)

(1,500,000

)

Rec/Amenities/Common Areas

 

 

0

 

0

 

1,000,000

 

1,000,000

 

Affordable Housing Fee (In lieu of)

 

 

0

 

0

 

1,000,000

 

1,000,000

 

Off-site/Spine-Road Upgrades

 

 

0

 

0

 

9,500,000

 

9,500,000

 

[ILLEGIBLE]

 

 

0

 

0

 

2,040,000

 

2,040,000

 

Total Direct Construction

 

 

0

 

0

 

19,565,000

 

19,565,000

 

 

 

 

 

 

 

 

 

 

 

 

Total Project Costs

 

 

17,432,883

 

2,583,538

 

21,077,599

 

41,094,020

 

 

 

 

 

 

 

 

 

 

 

 

Net Cash Flow Before Debt & Distribution

 

 

(17,432,883

)

(2,583,538

)

65,823,129

 

45,806,708

 

 

 

 

 

 

 

 

 

 

 

 

Plus:

 

 

 

 

 

 

 

 

 

 

Capital Contributions ClubCorp

 

 

13,200,000

 

0

 

0

 

13,200,000

 

Capital Contributions Investor

 

 

3,765,883

 

2,583,538

 

1,456,709

 

7,806,131

 

Capital Contributions Developer (Prior Investment Bal)

 

 

467,000

 

0

 

0

 

467,000

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

Preferred Return Payments to ClubCorp

 

 

0

 

0

 

3,168,000

 

3,168,000

 

Preferred Return Payments to Investor

 

 

0

 

0

 

1,090,152

 

1,090,152

 

Preferred Return Payments to Developer

 

 

0

 

0

 

816,076

 

816,076

 

 

 

 

 

 

 

 

 

 

 

 

Capital Account Payments to ClubCorp

 

 

0

 

0

 

13,200,000

 

13,200,000

 

Capital Account Payments to Investor

 

 

0

 

0

 

7,806,131

 

7,806,131

 

Capital Account Payments to Developer

 

 

0

 

0

 

467,000

 

467,000

 

Net Cash Flow Available for Distribution

 

 

0

 

(0

)

40,732,480

 

40,732,480

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

Balance Due to Developer @

11.0

%

0

 

(0

)

4,498,885

 

4,498,885

 

 

 

 

 

 

 

 

 

 

 

 

Net Cash Flow Due to ClubCorp

 

 

0

 

(0

)

36,233,595

 

36,233,595

 

 

1


 

Aliso Vlejo Golf Course Project

Exhibit E-6 - Project Cash Flow Summary

 

 

 

 

 

1 - 12

 

Months
13 - 24

 

25 - 36

 

Total

 

[ILLEGIBLE] Fees to Developer (Earned)

 

 

 

 

 

 

 

 

 

 

 

General Plan Presentation

 

1.5

%

125,000

 

—

 

 

 

125,000

 

General Plan Certification

 

1.5

%

125,000

 

—

 

—

 

125,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Phase II - Development Agreement

 

3.0

%

125,000

 

—

 

—

 

125,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Phase III - Shea Release

 

3.0

%

125,000

 

—

 

—

 

125,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Phase IV - Tentative Tract Map Approval

 

1.5

%

—

 

250,000

 

—

 

250,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Phase V - Final Tract Map Approval

 

1.5

%

—

 

—

 

250,000

 

250,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Phase VI - Closing

 

1.5

%

 

 

 

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

 

 

Administrative Fees

 

 

 

592,673

 

592,673

 

592,673

 

1,778,020

 

Total Incentive Fees Paid

 

 

 

500,000

 

250,000

 

250,000

 

1,000,000

 

Total Administrative Fees Paid

 

 

 

592,673

 

592,673

 

592,673

 

1,778,020

 

Total Fees Paid

 

 

 

1,092,673

 

842,673

 

842,673

 

2,778,020

 

 

 

 

 

 

 

 

 

 

 

 

 

NPV Total Paid Fees@

 

12

%

2,247,173

 

 

 

 

 

 

 

 

 

15

%

2,141,404

 

 

 

 

 

 

 

 

 

20

%

1,983,409

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Protect Distributions to Developer

 

 

 

—

 

—

 

4,498,885

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NPV Distributions@

 

12

%

3,202,217

 

 

 

 

 

 

 

 

 

15

%

2,958,090

 

 

 

 

 

 

 

 

 

20

%

2,603,521

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Payments to Developer

 

 

 

 

 

 

 

 

 

 

 

Incentive Fees/“Equity Prepayments”

 

 

 

500,000

 

250,000

 

250,000

 

1,000,000

 

Administrative Fees

 

 

 

592,673

 

592,673

 

592,673

 

1,778,020

 

Preferred Return Payments

 

 

 

—

 

—

 

816,076

 

816,076

 

Capital Account Repayments

 

 

 

—

 

—

 

467,000

 

467,000

 

Equity Distributions

 

 

 

—

 

(0

)

4,498,885

 

4,498,885

 

Total Payments to Developer

 

 

 

1,092,673

 

842,673

 

6,624,634

 

8,559,980

 

Cumulative Payments to Developer

 

 

 

1,092,673

 

1,935,347

 

8,559,980

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NPV Payments to Developer@

 

15

%

5,943,137

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ccounts/Preferred Returns

 

 

 

 

 

 

 

 

 

 

 

ed Net Proceeds of Project at EOY

 

 

 

40,732,480

 

40,732,480

 

40,732,480

 

 

 

Equity %age Sunmary

 

 

 

 

 

 

 

 

 

 

 

Equity %ages Earned

 

 

 

9.0

%

1.5

%

3.0

%

13.5

%

Cumulative Equity %ages Earned

 

 

 

9.0

%

10.5

%

13.5

%

13.5

%

Estimated Equity %age Paid

 

 

 

1.2

%

0.6

%

0.6

%

2.5

%

Equity %age Accrued

 

 

 

7.8

%

0.9

%

2.4

%

11.0

%

 

 

 

 

 

 

 

 

 

 

 

 

Developer Capital Account for Preferred  Return Calculation Purposes Only

 

 

 

 

 

 

 

 

 

 

 

Beginning Balance

 

 

 

467,000

 

3,632,923

 

3,993,910

 

 

 

Additions During Period- “Earned but Unpaid Equity”

 

 

 

3,165,923

 

360,987

 

971,974

 

 

 

Ending Balance

 

 

 

3,632,923

 

3,993,910

 

4,965,885

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerald Preferred Return@

 

8

%

 

 

 

 

 

 

 

 

Beginning Balance

 

 

 

—

 

121,691

 

418,805

 

 

 

Additions During Period

 

 

 

121,691

 

297,114

 

397,271

 

 

 

Reductions During Period

 

 

 

—

 

—

 

816,076

 

 

 

Ending Balance

 

 

 

121,691

 

418,805

 

—

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Beginning Balance

 

 

 

13,200,000

 

0

 

 

 

 

 

Additions During Period

 

 

 

0

 

0

 

0

 

 

 

Reductions During Period

 

 

 

0

 

0

 

—

 

 

 

Ending Balance

 

 

 

13,200,000

 

—

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Preferred Return@

 

8

%

 

 

 

 

 

 

 

 

Beginning Balance

 

 

 

—

 

1,056,000

 

2,112,000

 

 

 

Additions During Period

 

 

 

1,056,000

 

1,056,000

 

1,056,000

 

 

 

Reductions During Period

 

 

 

—

 

—

 

3,168,000

 

 

 

Ending Balance

 

 

 

1,056,000

 

2,112,000

 

—

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Investor Capital Account

 

 

 

 

 

 

 

 

 

 

 

Beginning Balance

 

 

 

0

 

3,765,883

 

6,349,421

 

 

 

Additions During Period

 

 

 

3,765,883

 

2,583,538

 

1,456,709

 

 

 

Reductions During Period

 

 

 

0

 

0

 

7,862,020

 

 

 

Ending Balance

 

 

 

3,765,883

 

6,343,421

 

(55,889

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Investor Preferred Return@

 

8

%

 

 

 

 

 

 

 

 

Beginning Balance

 

 

 

—

 

124,688

 

530,814

 

 

 

Additions During Period

 

 

 

124,688

 

406,127

 

559,338

 

 

 

Reductions During Period

 

 

 

—

 

—

 

1,090,152

 

 

 

Ending Balance

 

 

 

124,688

 

530,814

 

—

 

 

 

 

This exhibit assumes a 36 month project duration with no Shea Incentive Payment or CFD Incentive Payment earned.

 

2

 

Aliso Viejo Golf Course Project
Exhibit E-7 1st Year Cash Requirements

 

Month

 

1

 

2

 

3

 

4

 

5

 

6

 

7

 

8

 

9

 

10

 

11

 

12

 

Total

 

Gross Lot Revenues

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Less:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Estimated Discount to Shea

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Net Lot Revenues

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Closing Costs

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Net Revenues

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Base Purchase Price (Land)

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Previous Investment Balance

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Acquisition Costs

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Less:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Entitlement Costs (excl. Financing Costs)

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

65,000

 

192,273

 

192,273

 

192,273

 

192,273

 

127,273

 

159,881

 

1,446,245

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Indirect Construction

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CFD Expenses

 

0

 

0

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

41,667

 

416,667

 

Inspection/Audit/Legal/Acctng

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

14,286

 

171,429

 

Development Agreement Costs

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

39,583

 

475,000

 

Indirect Contingency

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

10,870

 

10,870

 

Total Indirect Construction

 

53,869

 

53,869

 

95,536

 

95,536

 

95,536

 

95,536

 

95,536

 

95,536

 

95,536

 

95,536

 

95,536

 

106,405

 

1,073,965

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Administrative Fees

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Asset Management Fee

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

6,500

 

78,000

 

G&A

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

49,389

 

592,673

 

Pre-Deal Costs - Dev. Expense Reimb.

 

75,000

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

75,000

 

Total Administrative

 

130,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

55,889

 

745,673

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Direct Construction

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On-site Construction (In-tract)

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Reimbursement (Infrastructure)

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Golf Course Improvements

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Community Amenities (Parking Structure)

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

CFD Reimbursements (Community Amenities)

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Rec/Amenities/Common Areas

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Affordable Housing Fee (In lieu of)

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Fees/Off-site/Spine-Road Upgrades

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Contingency

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

Total Direct Construction

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Project Costs

 

249,758

 

174,758

 

216,425

 

216,425

 

216,425

 

216,425

 

343,698

 

343,698

 

343,698

 

343,698

 

278,698

 

322,176

 

3,265,883

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Cash Flow Before Debt & Distribution

 

(249,758

)

(174,758

)

(216,425

)

(216,425

)

(216,425

)

(216,425

)

(343,698

)

(343,698

)

(343,698

)

(343,698

)

(278,698

)

(322,176

)

(3,265,883

)

Cumulative NCF Before Debt & Distribution

 

(249,758

)

(424,517

)

(640,942

)

(857,367

)

(1,073,792

)

(1,290,218

)

(1,633,916

)

(1,977,613

)

(2,321,311

)

(2,665,009

)

(2,943,707

)

(3,265,883

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Plus:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash Incentive Payments to EDG (Ph 1 -3)

 

125,000

 

—

 

—

 

—

 

—

 

125,000

 

—

 

125,000

 

—

 

—

 

—

 

125,000

 

500,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Cash Requirements

 

(374,758

)

(174,758

)

(216,425

)

(216,425

)

(216,425

)

(341,425

)

(343,698

)

(468,698

)

(343,698

)

(343,698

)

(278,698

)

(447,176

)

(3,765,883

)

Cumulative Cash Requirements

 

(374,758

)

(549,517

)

(765,942

)

(982,367

)

(1,198,792

)

(1,540,218

)

(1,883,916

)

(2,352,613

)

(2,696,311

)

(3,040,009

)

(3,318,707

)

(3,765,883

)

 

 

 

 

FIFTH AMENDMENT TO
JOINT VENTURE AGREEMENT

 

THIS FIFTH AMENDMENT is made and entered into this 12th day of November, 1998, by and between ALISO VIEJO GOLF, LP, a California limited partnership (hereinafter referred to as “AVG”), and LEGAV CORPORATION, a California corporation (hereinafter referred to as “Company”). The foregoing parties shall hereinafter collectively be referred to as the “Venturers.”

 

RECITALS

 

A.                                                Company and AVG entered into a Joint Venture Agreement dated June 16, 1997, concerning the “Aliso Viejo Golf Club,” a First Amendment to Joint Venture dated September 30, 1997, a Second Amendment to Joint Venture Agreement dated October 15, 1997, a Third Amendment to Joint Venture Agreement dated February 23, 1998, and a Fourth Amendment to Joint Venture Agreement dated March 12, 1998 (collectively, the “Agreement”).

 

B.                                                  Company and AVG desire to amend and revise certain provisions of the Agreement. All capitalized terms referenced or used in this Fifth Amendment not specifically defined herein shall have the meaning set forth in the Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows:

 

1.                         Definitions.

 

(a)             Section 1.16 of the Agreement is amended to read as follows:

 

“1.16 Club Loans. The term ‘Club Loans’ means the Textron Loan and the Mezzanine Loan, as the same may be amended, modified, extended, increased or refinanced from time to time by Lenders mutually acceptable to AVG and Company.”

 

(b)            Section 1.65 of the Agreement is amended to read as follows:

 

“1.65 Textron Loan. The term ‘Textron Loan’ means the loan made by Textron Financial Corporation to the Joint Venture for up to $21,490,000 (for acquisition development and construction costs) and up to $27,430,000 (for acquisition development and construction costs and permanent advances), as described in the Loan Agreement dated March 10, 1998, as amended by ‘First Amendment to Loan Agreement and Other Loan Documents’ dated November 13, 1998, and as further amended, extended, modified and/or refinanced from time to time.”

 

2.                         Textron Loan Indemnification. Section 4.4.2 to the Agreement referred to in the Fourth Amendment to Joint Venture Agreement is hereby renumbered as Section 4.4.5.

 

3.                         Additional Capital Contribution. The following sentence is added to the end of Section 4.4.4 of the Agreement: “As a condition precedent to the Lender funding the additional

 


 

$700,000 principal amount described in the First Amendment to Loan Agreement and Other Loan Documents dated as of November 13, 1998 between the Joint Venture and Textron Financial Corporation, the Venturers shall contribute additional capital of up to $320,000, (payable as “Increased Costs” are incurred, in the manner described in such amendment), 75% by Company and 25% by AVG.”

 

4.                         Effect of Amendment. Except as modified by this Amendment, all other terms and conditions of the Agreement shall continue in full force and effect. In the event there is a conflict between the terms recited in this Amendment and the Agreement, the terms recited herein shall control.

 

The parties have executed this Fifth Amendment to Joint Venture Agreement on the date first written above.

 

AVG:

 

 

ALISO VIEJO GOLF, LP
a California limited partnership

 

 

 

By:

Glenwood Golf Corporation
a California corporation
its general partner

 

 

 

 

 

By:

/s/ Paul Donnelly

 

 

 

Paul Donnelly

 

 

 

 

 

Title: President

 

 

Company:

 

 

LEGAV CORPORATION,
a California corporation

 

 

 

By:

/s/ Mark Dietz

 

 

 

Title:

Vice President

 

2


 

FOURTH AMENDMENT TO
JOINT VENTURE AGREEMENT

 

THIS FOURTH AMENDMENT is made and entered into this              day of March, 1998, by and between ALISO VIEJO GOLF, LP, a California limited partnership (hereinafter referred to as “AVG”), and LEGAV CORPORATION, a California corporation (hereinafter referred to as “Company”). The foregoing parties shall hereinafter collectively be referred to as the “Venturers.”

 

WITNESSETH

 

WHEREAS, Company and AVG entered into a Joint Venture Agreement dated June 16, 1997, concerning the “Aliso Viejo Golf Club,” a First Amendment to Joint Venture dated September 30, 1997, a Second Amendment to Joint Venture Agreement dated October 15, 1997, and a Third Amendment to Joint Venture Agreement dated March          , 1998 (collectively, the “Agreement”); and

 

WHEREAS, Company and AVG desire to amend and revise certain provisions of the Agreement as provided herein.

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereby create a joint venture for the purposes and upon the terms, provisions and conditions hereinafter set forth.

 

1. Definitions. All capitalized terms referenced or used in this Fourth Amendment not specifically defined herein shall have the meaning set forth in the Agreement.

 

2. Section 4.4 – Capital Contributions and Obligations. The following provision shall be added as Paragraph 4.4.2:

 

“4.4.2. Textron Loan Indemnification. The parties acknowledge that Textron Financial Corporation (“Textron”), as a condition precedent to closing the Textron Loan, has required the Venturers and Company’s parent corporation, Club Corporation of America (“CCA”), and AMH Golf Corp., California corporation (“AMH Golf”), to execute an indemnification agreement in the form attached hereto as Exhibit A concerning the [Illegible] Indemnification Agreement”). Notwithstanding anything to the contrary recited herein, in the event any amount is required to be funded (the “Indemnification Amount” by the Venturers, CCA, or AMH Golf to Textron or any other party under the terms of the Indemnification Agreement, Company and AVG each are to fund, as an additional Mandatory Capital Contribution, (i) the first ONE MILLION DOLLARS ($1,000,000.00) of the Indemnification Amount (as provided in Section 12.2) on the basis of seventy-five percent (75%) by Company and twenty-five percent (25%) by AVG, and then (ii) fifty percent (50%) by Company and AVG of the remaining Indemnification Amount. Each Venturer agrees to advance the Mandatory Capital Contribution within fifteen (15) days after receipt of written demand from the Management Committee, CCA or AMH Golf. If the claim is made against CCA or

 

1


 

AMH Golf. Company and AVG each hereby agree to indemnify and further agree to enter into an indemnification agreement in a form similar to the Indemnification Agreement, to hold CCA and AMH Golf harmless from any claim, liability or damage of any nature, including their respective reasonable attorneys’ fees, arising under the Indemnification Agreement. In the event a Venturer fails to make a required Mandatory Capital Contribution, then the nondefaulting Venturer shall have the right to the remedies set forth in Sections 17.2 and 17.3”

 

3. Agreement/Conflict. Except as modified herein, all other terms and conditions of the Agreement shall continue in full force and effect. In the event there is a conflict between the terms recited herein and in the Agreement, the terms recited herein shall control.

 

IN WITNESS WHEREOF, the parties have executed this Fourth Amendment to Joint Venture Agreement on the dare first written above.

 

AVG:

 

 

 

ALISO VIEJO GOLF, LP,
a California limited partnership

 

 

 

 

 

By:

Glenwood Golf Corporation,

Attest:

 

 

a California corporation,
its general partner

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Title:

 

 

 

Title:

 

 

 

Company:

 

Attest:

 

LEGAV CORPORATION,
a California corporation

 

 

 

 

 

 

 

 

By:

/s/ Mark Dietz

 

 

 

Title:

 

 

Title:

Vice President, Mark Dietz

 

2


 

THIRD AMENDMENT TO JOINT VENTURE AGREEMENT OF
ALISO VIEJO GOLF CLUB JOINT VENTURE

 

THIS THIRD AMENDMENT TO JOINT VENTURE AGREEMENT (the “Third Amendment”) is made and entered into as of the 23rd day of February, 1998, by and between ALISO VIEJO GOLF, LP, a California limited partnership (hereinafter referred to as “AVG”), and LEGAV CORPORATION, a California corporation (hereinafter referred to as “Company”). The foregoing parties shall hereinafter collectively be referred to as the “Venturers.”

 

RECITALS

 

A. Company and AVG entered into a certain Joint Venture Agreement dated June 16, 1997, concerning the “Aliso Viejo Golf Club” and those certain First Amendment to Joint Venture dated September 30, 1997 and Second Amendment to Joint Venture dated October 15, 1997 (collectively, the “Agreement”); and

 

B. Company and AVG desire to amend and revise certain provisions of the Agreement as provided herein,

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereby agree as follows:

 

1.                            Definitions. All capitalized terms referenced or used in this Third Amendment not specifically defined herein shall have the meaning set forth in the Agreement.

 

2.                            Exhibit E - Definitions. Exhibit E to the Agreement is hereby amended as follows:

 

a) Section 1.16. is amended to read as follows:

 

“1.16. Club Loans. The term “Club Loans” shall be defined collectively as (a) the construction loan made by Textron Financial Corporation in the approximate amount of TWENTY MILLION, SEVEN HUNDRED AND NINETY THOUSAND DOLLARS ($20,790,000.00); and (b) the Mezzanine Loan in the principal amount of SIX MILLION, SIX HUNDRED THOUSAND DOLLARS ($6,600,000.00), each made for the construction and development costs of the Improvements; or any loan refinancing, such loans (including, but not limited to, the permanent loan to be made by Textron Financial Corporation in the principal amount of TWENTY SIX MILLION, SEVEN HUNDRED AND THIRTY THOUSAND DOLLARS ($26,730,000.00); in such amounts and made by such lenders as are mutually acceptable to AVG and Company.”

 

b) Section 1.69. is hereby added to the Agreement to read as follows:

 

“1.69. First Additional Capital Contribution. The term “First Additional Capital Contribution” means the capital contribution referred to in Section 4.4.4.”

 


 

3.                            Contributions to the Joint Venture. - Article 4 of the Agreement is hereby amended as follows:

 

a) Section 4.1 of the Agreement is hereby restated to read correctly as follows:

 

“4.1 - Initial Capital Contributions. Subject to the satisfaction of the Conditions Precedent on the Contribution Date (other than the concurrent funding of the Textron Loan, which is hereby expressly waived by the parties), each Venturer shall contribute the following capital contributions, subject to increase as provided in Section 4.4.”

 

 

Venturer 

 

 

Initial Capital Contribution

 

 

 

 

 

 

 

 

 

 

AVG

Equity in Project:

 

$

346,027.00

 

 

 

AVG

Cash:

 

$

401,816.00

 

 

 

 

 

 

 

 

 

 

Company

Equity in Project:

 

$

15, 346.00

 

 

 

Company

Cash:

 

$

2,228,184.00

”

 

 

b) Section 4.4.1 of the Agreement is hereby amended to delete the phrase “...by the increased cost of the parking structure over the budgeted amount and…”.

 

c) Section 4.4.4 is hereby added to the Agreement to read as follows:

 

“4.4.4. First Additional Capital Contribution. On or before the closing and initial funding of the Textron Loan, each Venturer shall contribute the following additional capital for a combined additional capital contribution of THREE HUNDRED FORTY THOUSAND DOLLARS ($340,000):

 

 

Venturer 

 

 

Additional Capital Contribution

 

 

 

 

 

 

 

 

 

 

AVG

Cash:

 

$

85,000.00

 

 

 

Company

Cash:

 

$

255,000.00

 

 

 

After the First Additional Capital Contribution, the total capital contributions of each Venturer are as follows:

 

 

Venturer 

 

 

Capital Contribution

 

 

 

 

 

 

 

 

 

 

AVG

Equity in Project:

 

$

346,027.00

 

 

 

AVG

Cash:

 

$

486,816.00

 

 

 

AVG 

Total:

 

$

832,843.00

 

 

 

 

 

 

 

 

 

 

Company

Equity in Project:

 

$

15, 346.00

 

 

 

Company

Cash:

 

$

2,483,184.00

 

 

 

Company 

Total:

 

$

2,498,530.00

”

 

 

2


 

4.                            Payment of Certain Fees. Section 6.5 of the Agreement is hereby amended to replace the phrase “commencing as of the date of funding of the Club Loans” with “commencing as of November 20, 1997” and to add the following sentence: “The fees payable under this Section 6.5 are subject to allocation by action of the Management Committee as described in Section 6.6.1 of the Hotel Joint Venture Agreement.”

 

5.                            Effect of Amendment. Except as expressly amended by this Third Amendment, the Agreement is hereby expressly ratified and affirmed.

 

IN WITNESS WHEREOF, the parties have executed this Third Amendment to Joint Venture Agreement on the date first written above.

 

AVG:

 

 

ALISO VIEJO GOLF, LP,
a California limited partnership

 

By:

Glenwood Golf Corporation,
a California corporation,
its general partner

 

 

 

 

 

 

 

By:

/s/ Paul N. Donnelly

 

 

Paul N. Donnelly

 

 

Title:  President

 

Company:

 

 

LEGAV CORPORATION,
a California corporation

 

 

 

 

 

By:

/s/ Mark Dietz

 

 

Mark Dietz

 

 

Title:

Vice President

 

3

 

SECOND AMENDMENT TO
JOINT VENTURE AGREEMENT

 

THIS SECOND AMENDMENT is made and entered into this 15th day of October, 1997, by and between ALISO VIEJO GOLF, LP, a California limited partnership (hereinafter referred to as “AVG”), and LEGAV CORPORATION, a California corporation (hereinafter referred to as “Company”). The foregoing parties shall hereinafter collectively be referred to as the “Venturers.”

 

WITNESSETH

 

WHEREAS, Company and AVG entered into a certain Joint Venture Agreement dated June 16, 1997, concerning the “Aliso Viejo Golf Club” and that certain First Amendment to Joint Venture dated September 30, 1997 (collectively, the “Agreement”); and

 

WHEREAS, Company and AVG desire to amend and revise certain provisions of the Agreement as provided herein,

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereby create a joint venture for the purposes and upon the terms, provisions and conditions hereinafter set forth.

 

1.  Definitions. All capitalized terms referenced or used in this Second Amendment not specifically defined herein shall have the meaning set forth in the Agreement.

 

2.  Section 2.11 - Hotel Venture. Section 2.11 shall be superceded and replaced by the following provision:

 

“2.11.  Hotel Site. The Venturers acknowledge the anticipated development of a hotel and conference facility with appropriate amenities and parking facilities (to contain not more than four hundred eight [408] guest rooms, and not to exceed eight [8] stories in height, all collectively referred to herein as the “Hotel”) on the Hotel Site. When the Hotel Site is being developed by the Hotel Venture, at such time as the Hotel Site and the Replacement Site may be legally conveyed, and subject to (i) meeting the requirements of the . Textron Loan, and (ii) the execution of the Clubhouse Documentation referenced below, the Venture shall release the Hotel Site from the Real Property which is the subject of this Agreement (and cause the Hotel Site [in accordance with the Clubhouse Documentation] to be released from any encumbrance securing the Textron Loan and the Club Loans), to be replaced by the Replacement Site. The Replacement Site shall be conveyed by the Commercial Property Joint Venture to the Golf Club Joint Venture on or before conveyance of the Hotel Site. On the transfer of the Hotel Site, the Hotel Joint Venture and the Golf Club Joint Venture will enter into an agreement (the “Clubhouse Documentation”) to provide the required Clubhouse Facilities, exclusive of the golf course

 

1


 

maintenance facilities, on the Hotel Site pursuant to a long-term lease or by recordation of a condominium map for the clubhouse, cart level, and other Clubhouse Facilities with the conveyance of the condominium rights or leasehold interest to the portion of the Clubhouse Facilities to the Golf Club Joint Venture on terms acceptable to the Hotel Joint Venture and the Golf Club Joint Venture and a long-term lease or permanent nonexclusive easement to the Golf Club Joint Venture for the parking structure constructed or to be constructed, subject to a reserved nonexclusive easement for parking for the Hotel Joint Venture. Provided, however, the cost to the Golf Club Joint Venture shall not exceed the budgeted amount, subject to reimbursements for the parking structure to be funded by the Hotel Joint Venture, unless agreed to by the Venturers of the Golf Club Joint Venture in writing, for the Clubhouse Facilities to be located on the Hotel Site as shown on the Site Plan and the preliminary construction drawings in existence as of the date of this Agreement. The Venture shall also enter into such other usual and customary arrangements with the Hotel Venture for use of the driveway and parking facilities by both the Golf Course Improvements and the Hotel, easements for support, arrangements for the sharing of maintenance and other costs of the parking facilities, driveway (provided that the Venture shall not be responsible for the cost of construction of a parking structure, except that the Venture shall be responsible for the cost to construct an on-grade surface asphalt parking lot required for the Venture’s use, including any drainage, utilities, or other improvements necessary or required to construct a surface parking lot, without regard to the Hotel requirements)(*), reciprocal easements for utilities and access, and other shared facilities, if any, including cost sharing arrangements between (i) the Hotel Site and the Replacement Site sufficient to provide access to a public street, and (ii) the Hotel Site and the Real Property, on mutually acceptable terms. Following completion of construction of the Golf Course Improvements, the Venture anticipates that some shared use of facilities and services and other cooperative arrangements between the Hotel Venture, the Venture, and the operator of the Hotel is appropriate, and will negotiate such arrangements in good faith. Other than the sharing of expenses for maintenance and similar arrangements described above, the Venturers agree that the Venture and its customers, members, or employees shall not be charged for their use of the parking structure or facilities, which shall be constructed by the owner of the Hotel site. AVG and Company agree that any agreement to which the Venture is a party relating to the Golf Course Improvements or the Real Property (exclusive of the Hotel Site, except for the area included in the Clubhouse Documentation) shall require the approval of both Venturers, such approvals shall not be unreasonably withheld. The Venture shall offer Hotel guest and the Hotel operator the right to reserve tee times in advance and use of the Clubhouse Facilities at fees not to exceed market, and such other privileges as the parties agree. Subject to meeting the requirements of the Textron Loan and the execution of the Clubhouse Documentation, as provided above, the documentation necessary for the replacement and substitution shall be executed by the parties (and, as necessary, the holders of the Club Loans) on the Closing Date and held by AVG or a third-party escrow, as agreed, for use when the Hotel Site and Replacement Site can be legally conveyed, without further consent.”

 

(*) and shall be reimbursed by the Hotel Joint Venture for funds advanced in excess of the cost of such surface lot)

 

2


 

3.  Section 2.12 - Commercial Property Joint Venture. Section 2.12 shall be superceded and replaced by the following provision:

 

“2.12.  Commercial Property Joint Venture. The Venturers acknowledge that, in order to develop the Hotel and acquire the Replacement Site, a third joint venture (the “Commercial Property Joint Venture”) will be established between the Venturers to acquire the Commercial Property pursuant to the terms set forth in the proposed purchase and sale agreement being negotiated and to be entered into between Mission Viejo Company and AMHC Corp., with an Effective Date of June 17, 1997 (the “Purchase Agreement”). Company shall fund ninety percent (90%) and AVG shall fund ten percent (10%) of the equity requirements agreed to by the parties to acquire the Commercial Property pursuant to the terms of the Purchase Agreement. The Purchase Agreement shall be assigned to the Commercial Property Joint Venture after the Commercial Property Joint Venture is established by the Venturers. AVG shall be designated the Development and Construction Manager for the Commercial Joint Venture pursuant to an agreement which shall incorporate the terms recited herein, and be approved by the Venturers, as to the development and construction activities, and (iii) be approved by the Venturers. The property lines for the Real Property, the Commercial Property, and the Replacement Site shall be adjusted as set forth on the Site Plan, or as may be subsequently adjusted as agreed to by the parties, subject to the terms and conditions in Subparagraph 2.12.1 below. Prior to the commencement of the additional Phases II, III, or IV as set forth on Exhibit G attached hereto (the “Phases”), each Venturer shall be presented the following proposed terms, statements, and information concerning the next Phase, namely: (i) business terms, (ii) proforma financial statements, (iii) potential financing (including any third-party participation), and (iv) development schedule (collectively, the “Proposal”). The Proposal for the next Phase shall be presented to each Venturer not less than forty-five (45) days prior to the date of the Management Committee’s vote to approve the next Phase. Each vote concerning a Phase shall not be less than five (5) months prior to the date the first funding is required for the Phase, and not before the expiration of the 45-day review period for each Proposal prior to the vote by the Management Committee. In the event Company or AVG elects to not participate in the development of the next Phase of the Hotel Joint Venture or the Commercial Property Joint Venture, by failing to give an affirmative vote of such Venturer through the Management Committee to approve the next Phase and approve and fund the necessary capital contributions required, then the Venturer who elects to proceed with the development may purchase the acreage for the next Phase (the “Phase Acreage”) from the applicable Venture at the cost of THREE HUNDRED NINETY-FIVE THOUSAND EIGHT HUNDRED THIRTY DOLLARS ($395,830.00) per acre, plus any interest or other costs incurred calculated on a per-acre basis from the date the Commercial Property is acquired (the “Phase Acreage Purchase Price”), subject to the terms recited herein. Prior to the date of the closing of the sale of the Phase Acreage (the “Phase Closing Date”), and as a condition to said sale, the Venturer who elects to proceed must provide to the other Venturer the following: (i) evidence of financing and funds to construct and develop the Phase,

 

3


 

and (ii) the Commercial Property Agreement, as defined below, fully executed at Closing. In the event the actual construction of the Phase has not commenced within six (6) months of the Phase Closing Date, the Commercial Property Joint Venture shall have the option to reacquire the Phase Acreage for (i) the Phase Acreage Purchase Price, plus (ii) any other actual costs expended by the Venturer to develop and construct any improvements on the Phase Acreage (the “Reacquisition Purchase Price”). If a portion of the costs expended by the Venturer is funded by a development loan (the “Development Loan”) against the Phase Acreage, the Commercial Property Joint Venture shall assume the outstanding balance of the Development Loan, which shall be a credit against the Reacquisition Purchase Price. The Venture shall enter into such cooperative agreement, easements, and reciprocal agreement as may be reasonably required by this Venture, the Hotel Venture, the Commercial Property Joint Venture or the remaining Venturer, if applicable, for the continued development and operation of the remaining property as contemplated pursuant to the terms of this Agreement, such that a portion of the Golf Course Improvements can be constructed and operated on the Commercial Property (the “Commercial Property Agreement”). The Venturers agree that AVG shall have the responsibility and authority to handle, on behalf of the Commercial Property Venture, the day-to-day operating decisions during the development of the Commercial Property, including minor lot line adjustments, zoning matters, easements, and other development issues, negotiations with operators, franchisors, investors, and participants, design and engineering issues, preconstruction, and site improvements, provided that AVG obtains the Management Committee’s approval for all binding agreements which are Major Policy Decisions. The Management Committee for the Commercial Property Venture shall have the right and authority to approve all Major Policy Decisions affecting the Commercial Property Joint Venture or the Commercial Property. In the event Company or its Affiliate has not executed, by October 31, 1997 (irregardless of whether AVG or its Affiliate has executed or not), a joint venture agreement, in a form similar to this Agreement, to form the Commercial Property Venture as a general partnership under California law which provides for a initial capitalization of (i) FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) to be funded within three (3) business days after the execution date, and (ii) the funding of approximately TWO MILLION DOLLARS ($2,000,000.00) on the closing date of the acquisition of the Commercial Property, each funded on (a) a ninety percent (90%) basis by Company/Affiliate, or (b) a ten percent (10%) basis by AVG/Affiliate, AVG shall have the right to develop the Commercial Property and related improvements on the Commercial Property itself or with the participation of any third party as otherwise provided in this Agreement, subject only to the obligations recited below in Paragraph 2.12.1.”

 

4


 

4.  Section 4.1 - Initial Capital Contributions, and Section 4.2 - Initial Capital Account. Sections 4.1 and 4.2 are hereby amended to read as follows:

 

“4.1.  Initial Capital Contributions. Subject to the satisfaction of the Conditions Precedent on the Contribution Date (other than the concurrent funding of the Textron Loan, which is hereby expressly waived by the parties), each Venturer shall contribute the following initial capital contributions, subject to increase as provided in Section 4.4 below (the “Initial Capital Contribution”):

 

Venturer

 

Initial Capital Contribution

 

AVG Equity in Project:

 

$

401,816.00

 

AVG Cash:

 

$

346,027.00

 

Company Equity in Project:

 

$

15,346.00

 

Company Cash:

 

$

2,228,184.00

 

 

4.2.   Capital Account. AVG and Company agree that the initial capital account of the Venturers on the Contribution Date shall be equal to the Initial Capital Contribution of each, subject to adjustment pursuant to Section 4.4.

 

5.  Section 4.4 - Capital Contributions and Obligations. The following provision shall be added as Paragraphs 4.4.1, 4.4.2, and 4.4.3:

 

“4.4.1.  Increased Project Costs. Notwithstanding anything herein to the contrary, the Venturers agree that the total construction costs of the Golf Course Improvements will be increased based on the Venturers’ use of the Nicklaus Design Division of the Golden Bear International, Inc., to design the Golf Course Improvements(*) (the “Golf Course Increase”). The Golf Course Increase shall be funded as follows: (i) ten percent (10%) by the Venturers as equity (75% of said 10% by Company and 25% of the 10% by AVG), (ii) twenty-two percent (22%) by the Mezzanine Lender, and (iii) sixty-eight percent (68%) by Textron under the Textron Loan. Any portion of the Golf Course Increase not funded by Textron shall be funded by the Venturers, i.e., seventy-five percent (75%) by Company and twenty-five percent (25%) by AVG, as equity, as an additional capital contribution.

 

4.4.2.  Mandatory Capital Contribution. Notwithstanding anything to the contrary recited herein, the Venturers each agree to fund an additional SIX HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($625,000.00) each for a total of ONE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($1,250,000.00) to the Venture if required to avoid the occurrence of, or to cure an event of default by, the Venture under the Club Loans (the “Mandatory Capital Contribution”). The Mandatory Capital Contribution shall bear interest at ten percent (10%) per annum compounded monthly, and shall be repaid to the Venturers

 

(*) and may be increased by the cost of the parking structure over the budgeted amount and by the cost of the clubhouse facilities if the Hotel is not built and such funding is required by Textron.

 

5


 

pursuant to the provisions of Paragraph 8.1.2. Each Venturer agrees to advance the Mandatory Capital Contribution as required by the Joint Venture within fifteen (15) days after written notice from the Management Committee.

 

4.4.3.  Refinance of Mezzanine Loan. The Venturers shall replace the Mezzanine Loan with the Subsequent Mezzanine Financing (in which Company and AVG have the right to participate as provided in Section 4.3) or other financing within a period not to exceed twelve (12) calendar months from the initial funding of the Mezzanine Loan, subject to both Venturers approval of the Subsequent Mezzanine Financing. The Venturers acknowledge that it is anticipated that the Subsequent Mezzanine Financing will be included in the mezzanine debt for the Hotel pursuant to the Hotel Joint Venture.”

 

6.  Management. Paragraphs 6.1.10, 6.1.11, and 6.1.12 are amended to read as follows:

 

“6.1.10.  Tax Returns. The Joint Venturer shall hire an independent certified public accounting firm to prepare and submit to the Management Committee for their review, at least fifteen (15) days prior to the due date, a draft of the tax returns required of the Joint Venture. AVG shall be designated as the “Tax Matters Partner” pursuant to Section 6223 of the Internal Revenue Code and shall be responsible for filing the tax returns required of the Joint Venture based on the Financial Statements until the Club Opening Date, as defined in Section 6.6, and Company shall serve as “Tax Matters Partners” after said date. However, both Venturers shall have the right to approve all tax returns prior to the returns being filed.

 

6.1.11.  Insurance. The Managing Partners shall cause the Joint Venture to carry and maintain comprehensive general liability insurance with (i) bodily injury limits of ONE MILLION DOLLARS ($1,000,000.00) for injury or death to any one person and ONE MILLION DOLLARS ($1,000,000.00) for any one occurrence, (ii) property damage limits of ONE MILLION DOLLARS ($1,000,000.00) for any one occurrence and ONE MILLION DOLLARS ($1,000,000.00) in the aggregate, and (iii) property insurance on all applicable assets owned by the Joint Venture in amounts not less than ninety percent (90%) of the full replacement value, or as may be required by lenders of the Joint Venture.

 

6.1.12.  Implementation. The Managing Partners shall implement any and all decisions of the Management Committee and coordinate them with the Club Consultant and the Development and Construction Manager as necessary.”

 

6


 

7.  Section 6.8 - Accounting Records. Section 6.8 shall be amended by adding the following sentence at the end of the Section:

 

“Each Venturer shall have direct computer access to the accounting records and books of the Joint Venture (including the Club), password protected, for review purposes only.”

 

8.  Paragraph 8.1.2 - Payment of Equity Loans. Paragraph 8.1.2 shall be superceded and replaced by the following:

 

“8.1.2.  Payment of Mandatory Capital Contribution and Equity Loans. Any remaining Positive Net Cash Flow shall be applied to the outstanding balance of any (i) Mandatory Capital Contribution, or (ii) Equity Loan until paid in full, including any accrued interest thereon.”

 

9.  Article 15 - Transfer of Joint Venture Interest. Paragraphs 15.1.3 and 15.1.4 shall be superceded and replaced by the following:

 

“15.1.3.  In the event of the death of Paul N. Donnelly, the transfer to the heirs of Paul N. Donnelly of Paul N. Donnelly’s interest in the stock of AVG, an Affiliate of AVG, or an entity that is a Permitted Transferee under Paragraph 15.1.2;

 

15.1.4.  The pledge and collateral assignment of a Venturers’ interest in the Joint Venture to a third-party institution lender with assets in excess of FIFTY MILLION DOLLARS ($50,000,000.00) (or such lesser amount as agreed to in writing by all Venturers) (the “Institutional Lender”) as security for a loan to the Venturer for any business reason. The maximum loan amount, including any subsequent advances, or the allocated amount of the loan for which the Venturer’s Percentage Interest is pledged and subject to the collateral assignment, shall not exceed ninety-five percent (95%) of the appraised value (per Article 18) (or otherwise agreed value by the Venturers) of the Venturer’s Percentage Interest in the Venture as of the loan date. In the event of a default of a loan from an Institutional Lender by a Venturer which results in the Institutional Lender assuming said Venturer’s position and obligation as a Venturer, then the other Venturer shall immediately be substituted as the Managing Partner of the Joint Venture and shall be entitled to vote only on Major Policy Decisions considered by the Management Committee. Any loan documentation shall require that the Institutional Lender give the other Venturer notice of default and opportunity to cure said default within ten (10) days after said notice. Any amounts advanced to remedy the cure by the other Venturer shall be considered a Deficit Loan. The remaining Venturer shall have the right, at all times, after the Institutional Lender acquires the Venturer’s Percentage Interest to purchase said interest for an amount equal to the lesser of (i) the thenoutstanding balance amount of the Institutional Lender’s loan to the defaulting Venturer, including any accrued interest, or (ii) the outstanding balance of the allocated amount of the loan for which the Venturer’s Percentage Interest has originally pledged and subject to the collateral assignment; and

 

7


 

15.1.5  The pledge and collateral assignment of a Venturer’s interest in the Joint Venture to a third-party lender (“Financing Lender”) with assets less than FIFTY MILLION DOLLARS ($50,000,000.00) as security for a loan to a Venturer in order for a Venturer to make a Capital Contribution. However, in the event of a default of a loan from a Financing Lender by a Venturer which results in the Financing Lender giving notice of its intent to enforce its security interest and/or attempting to foreclose on a Venturer’s interest, then the other Venturer shall immediately be substituted as the Managing Partner of the Joint Venture and the Financing Lender shall not have a vote on the Management Committee. Any loan documentation shall require that the Financing Lender give the other Venturer notice of a default and opportunity to cure within thirty (30) days after said notice. Any amounts advanced to remedy the cure by the other Venturer shall be considered a Deficit Loan.”

 

10.  Section 19.11 - Termination of Hotel Joint Venture or Commercial Property Joint Venture. The following new Section shall be inserted at the end of Article 19:

 

“19.11.  Termination of Hotel Joint Venture or Commercial Property Joint Venture. In the event the Hotel Joint Ventures terminates, pursuant to Section 3.3 of the Hotel Joint Venture Agreement, and the remaining Venturer or an Affiliate of such Venturer wishes to proceed with the development of the Hotel, said party shall have the rights and obligations of AVG as to the Hotel Site pursuant to Sections 2.10, 2.11, and 2.13 of this Joint Venture, subject to the terms and agreements recited herein and the Commercial Property Joint Venture. In the event a Venturer withdraws from the Commercial Property Joint Venture, pursuant to Section 3.3 thereof, and the Commercial Property Joint Venture terminates, the remaining Venturer, if any, that elects to proceed with the acquisition of the Commercial Property shall be assigned the Purchase Agreement, as defined in the Commercial Property Joint Venture, subject to the terms, conditions, and rights set forth in Sections 2.11 and 2.12 herein.”

 

8


 

IN WITNESS WHEREOF, the parties have executed this Second Amendment to Joint Venture Agreement on the dare first written above.

 

AVG:

 

 

 

ALISO VIEJO GOLF, LP, a California limited partnership

 

 

 

 

 

 

 

By:

Glenwood Golf Corporation,

Attest:

 

 

a California corporation,
its general partner

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Paul Donnelly

 

 

 

 

 

 

Title:

 

 

 

Title:

President

 

 

Company:

 

Attest:

 

LEGAV CORPORATION,
a California corporation

 

 

 

 

 

 

 

 

By: 

/s/ Mark Dietz

 

 

 

 

Title: 

 

 

Title: 

Vice President

 

9


 

FIRST AMENDMENT TO
JOINT VENTURE AGREEMENT

 

THIS FIRST AMENDMENT TO JOINT VENTURE AGREEMENT (this “Amendment”), is executed as of September 29, 1997 by ALISO VIEJO GOLF, LP, (“AVG”) and LEGAV CORPORATION (“Company”) and reprecedes and replaces the previous First Amendment to Joint Venture Agreement previously entered into between the parties.

 

RECITALS

 

A. On June 16, 1997, AVG and Company entered into a Joint Venture Agreement (the “AGREEMENT”). All             terms used herein but not defined shall have the meanings assigned to them in the Agreement.

 

B. AVG and Company wish to amend the Agreement as provided herein.

 

AMENDMENT

 

For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged AVG and Company agree as follows:

 

1. Hotel and Commercial Property Joint Ventures. The references to forty-five (45) days in Section 2.10 and 2.12 of the Agreement shall be amended to read as October 30, 1997

 

2. Ratification. AVG and Company hereby ratify the terms of the Agreement and acknowledges that, except as herein set forth, the Agreement as previously amended remains in full force and effect

 

 

10/23/97   

/s/ MD

 

 

 

 

10/24/97   

/s/ PD

 

AVG:

 

 

 

ALISO VIEJO GOLF, LP, a California limited partnership

 

 

 

 

 

By:

Glenwood Golf Corporation,

 

 

 

a California corporation,
its general partner

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Paul Donnelly

 

 

 

Title:

9/30/97

 

Company:

 

 

 

LEGAV CORPORATION, a California corporation

 

 

 

 

 

 

 

 

 

 

By:

/s/ Mark Dietz

 

 

Title:

Mark Dietz, Vice President

 

10

 

 

 

 

JOINT VENTURE AGREEMENT

 

 

BY AND BETWEEN

 

ALISO VIEJO GOLF, LP,
a California limited partnership
(“AVG”)

 

AND

 

LEGAV CORPORATION,
a California corporation
(“Company”)

 

 

 

 


 

TABLE OF CONTENTS

 

Article

 

Page

 

 

 

 

 

INTRODUCTION / WITNESSETH

 

1

 

 

 

 

1.

DEFINITIONS

 

 

 

 

 

 

 

Definitions

 

2

 

 

 

 

2.

FORMATION OF THE PARTNERSHIP

 

 

 

 

 

 

 

Formation

 

2

 

Name

 

2

 

Principal Office

 

2

 

Purpose of the Joint Venture

 

2

 

Partnership Act; Ownership; No Partition

 

2

 

No Individual Authority

 

3

 

No Restrictions on Outside Activities

 

3

 

Not Responsible for Other’s Commitments

 

3

 

Legal Obligations

 

3

 

Hotel Venture

 

4

 

Hotel Site

 

5

 

Equestrian Easement

 

7

 

Golf Memberships

 

7

 

 

 

 

3.

TERM

 

 

 

 

 

 

 

Term

 

7

 

Initial Deposit

 

8

 

Contribution Conditions Precedent

 

8

 

 

 

 

4.

CONTRIBUTIONS TO THE JOINT VENTURE

 

 

 

 

 

 

 

Initial Capital Contributions

 

9

 

Initial Capital Account

 

9

 

Mezzanine Loan

 

9

 

Capital Contributions and Obligations

 

9

 

 

 

 

5.

INTEREST OF THE VENTURERS

 

 

 

 

 

 

 

Percentage Interest

 

10

 

Allocation of Net Profit

 

10

 

Allocation of Net Loss

 

11

 

Special Allocations

 

11

 

Curative Allocations

 

13

 


 

 

Tax Allocations: Section 704(c) of the Code

 

13

 

Deficit Capital Makeup

 

14

 

 

 

 

6.

MANAGEMENT OF THE JOINT VENTURE

 

 

 

 

 

 

 

Management Committee

 

14

 

Meetings of the Management Committee

 

14

 

Action by the Management Committee

 

15

 

Management

 

15

 

Development Fee

 

17

 

Consulting Fee

 

17

 

Managing Partner’s Percentage Fee

 

18

 

Accounting Records

 

18

 

Costs and Expenses; No Compensation

 

18

 

Replacement

 

18

 

 

 

 

7.

BUDGETS

 

 

 

 

 

 

 

Budgets

 

19

 

 

 

 

8.

DISTRIBUTION OF POSITIVE NET CASH FLOW

 

 

 

 

 

 

 

Positive Net Cash Flow

 

19

 

Refinance and Sale Proceeds

 

20

 

 

 

 

9.

AVG’S COVENANTS AND REPRESENTATIONS

 

20

 

 

 

 

10.

COMPANY’S COVENANTS AND REPRESENTATIONS

 

21

 

 

 

 

11.

PROHIBITED TRANSACTIONS AND AFFILIATED RELATIONSHIPS

 

 

 

 

 

 

 

Prohibited Transactions

 

22

 

Self-Dealing

 

23

 

Company Programs

 

23

 

 

 

 

12.

CLUB LOAN

 

 

 

 

 

 

 

Club Loans

 

24

 

Guarantee of Club Loans

 

24

 

 

 

 

13.

BOOKS, RECORDS, AUDITS, TAXES, ETC.

 

 

 

 

 

 

 

Books; Statements

 

25

 

Where Maintained; Availability

 

26

 

Audits

 

26

 

Independent Audit

 

26

 

Other Information

 

26

 

Banking

 

26

 

Tax Returns; Review

 

26

 


 

14.

DISSOLUTION AND LIQUIDATION OF THE JOINT VENTURE

 

 

 

 

 

 

 

Dissolution Events

 

26

 

Method of Liquidation

 

27

 

Date of Termination

 

28

 

 

 

 

15.

TRANSFER OF JOINT VENTURE INTEREST

 

 

 

 

 

 

 

Transfer of Interest

 

28

 

 

 

 

16.

PUT PROVISIONS / RIGHT OF FIRST REFUSAL

 

 

 

 

 

 

 

Put Option

 

29

 

Default of AVG on Put Option

 

31

 

Right of First Refusal

 

31

 

Exercise of Right of First Refusal

 

32

 

Obligation to Sell

 

33

 

 

 

 

17.

DEFAULT BY A VENTURER

 

 

 

 

 

 

 

Events of Default

 

33

 

Effect of Default

 

34

 

Failure to Make a Capital Contribution

 

35

 

 

 

 

18.

PROCEDURE FOR APPRAISEMENT

 

 

 

 

 

 

 

Selection of Appraisers

 

35

 

Determination of Fair Market Value

 

35

 

Fees and Expenses

 

36

 

 

 

 

19.

MISCELLANEOUS

 

 

 

 

 

 

 

Arbitration

 

36

 

Waiver of Trial by Jury

 

37

 

Exhibits

 

37

 

Notices

 

38

 

Independent Corporation

 

39

 

Assignment

 

39

 

Public Announcements

 

39

 

Severability

 

39

 

Approvals

 

39

 

Integrated Agreement

 

39

 

Development and Construction of Agreement

 

40

 

Amendment and Waiver

 

40

 

Successors and Assigns

 

40

 

Unavoidable Delay

 

40

 

Documentation

 

40

 

 

 

 

 

EXECUTION / ATTESTATION

 

41

 

 

JOINT VENTURE AGREEMENT

 

THIS AGREEMENT is made and entered into this              day of June, 1997, by and between ALISO VIEJO GOLF, LP, a California limited partnership (hereinafter referred to as “AVG”), and LEGAV CORPORATION, a California corporation (hereinafter referred to as “Company”). The foregoing parties shall hereinafter collectively be referred to as the “Venturers.”

 

WITNESSETH

 

WHEREAS, AVG has previously acquired the real property described on Exhibit A attached hereto, in the unincorporated area of Aliso Viejo, Orange County, California (the “Real Property”); and

 

WHEREAS, the Real Property is to be developed as part of a development project (the “Project”) which shall include a 27-hole golf course facility to be known as “Aliso Viejo Golf Club” (the “Club”); and

 

WHEREAS, Company and its affiliated corporations have the expertise to develop and operate the Club to be built as part of the Project; and

 

WHEREAS, AVG desires to facilitate the transfer to the Joint Venture of the Real Property, a portion of which is to be developed as the Club, as described in the site plan shown on Exhibit C-1 and Exhibit C-2 attached hereto (the “Site Plan”) and a portion of which will be subject to an easement to be granted to Leisure World, as described on Exhibit D attached hereto (the “Easement Property”); and

 

WHEREAS, the funding of the ongoing development and construction costs of the Club and the Improvements shall be provided to the Joint Venture pursuant to loans (collectively, the “Club Loans”) from such lender or lenders as may be mutually acceptable to Company and AVG, and capital contributions or loans from Company and AVG, as set forth in this Agreement; and

 

WHEREAS, AVG and Company desire to pool their respective resources to form this Joint Venture to acquire the Real Property for the Club and to build, develop and operate the Club pursuant to the terms and conditions recited herein; and

 

WHEREAS, the Joint Venture and GGC Management, Inc., a California corporation (hereinafter referred to as the “Club Consultant”) have contemporaneously herewith entered into a club consulting agreement (the “Club Consulting Agreement”) concerning providing certain consulting services to the Club; and

 

1


 

WHEREAS, the Joint Venture and AMH Golf Corp. (the “Development and Construction Manager”) have contemporaneously herewith entered into a project development and construction management agreement (the “Development and Construction Management Agreement”) concerning the construction of the Club,

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereby create a joint venture for the purposes and upon the terms, provisions and conditions hereinafter set forth.

 

ARTICLE 1.

 

DEFINITIONS

 

1.1. Definitions. All capitalized terms referenced or used in this Agreement and not specifically defined herein shall have the meaning set forth in alphabetical listing on Exhibit E, which is attached hereto and incorporated by reference.

 

ARTICLE 2.

 

FORMATION OF THE PARTNERSHIP

 

2.1. Formation. AVG and Company hereby form a general partnership (the “Joint Venture’) for the limited purposes hereinafter set forth.

 

2.2. Name. The name of the Joint Venture shall be “Aliso Viejo Golf Club Joint Venture.” The Venturers shall execute all assumed or fictitious name certificates required by law to be published and filed in connection with the formation and operation of the Joint Venture.

 

2.3. Principal Office. The principal office of the Joint Venture Shall be located at the office of AVG until the Club Facilities are open for operation and at the Club Facilities thereafter, or at such other place as the Management Committee may from time to time determine.

 

2.4. Purpose of the Joint Venture. The purpose of the Joint Venture shall be limited solely to the following:

 

2.4.1. To acquire, finance, build, develop, sell, maintain and operate the Property to be acquired and the Club to be built on the Real Property by the Joint Venture; and

 

2.4.2. To engage in any and all general activities related or in any way incidental thereto, and to do all things necessary for the operation of such activities.

 

2.5. Partnership Act; Ownership; No Partition. Except as is expressly herein stipulated to the contrary, the rights and obligations of the Venturers and the administration and termination of the Joint Venture shall be governed by the Uniform Partnership Act, adopted by the State of

 

2


 

California, as may from time to time be amended (the “Act”). All real or personal property acquired by the Joint Venture shall be deemed to be owned by the Joint Venture as an entity, and no Venturer individually shall have any ownership of such property. Each of the Venturers does hereby agree to, and does hereby irrevocably waive, for the duration of this Agreement, any right or power any such Venturer might have to cause the Joint Venture or any of its assets to be partitioned, to cause the appointment of a receiver for the assets of the Joint Venture, to compel any sale of all or any portion of the assets of the Joint Venture pursuant to any applicable law or laws, or to file a complaint or to institute any proceeding at law or in equity to cause the termination or dissolution of the Joint Venture, except as expressly provided for herein. Each of the Venturers hereby acknowledges and agrees that such Venturer has been induced to enter into this Agreement in reliance upon the mutual waivers set forth in this Section, and without such waivers, none of the Venturers would have entered into this Agreement. No Venturer has any interest in specific Joint Venture property, but the interests of the Venturers in the Joint Venture are for all purposes personal property. Upon any breach of the provisions of this Section by any Venturer, the other Venturers, in addition to all other rights and remedies at law and in equity they may have, shall be entitled to a decree or order restraining and enjoining such application, action or proceeding.

 

2.6. No Individual Authority. The business of the Joint Venture shall be limited strictly to the purposes set forth in Section 2.4, and, except as otherwise expressly provided in this Agreement, a Venturer acting alone shall not have any authority to act for, or to assume any obligation or responsibility on behalf of, the other Venturers or the Joint Venture.

 

2.7. No Restrictions on Outside Activities. Nothing contained in this Agreement shall be construed to prohibit, restrict or limit a Venturer or any entity, firm or corporation controlled by such Venturer, or any parent company, from owning, operating or investing in any business or activity of any nature, including, without limitation, the acquisition, development and management of real property or other club facilities; said activities to be without any accountability, liability or obligation whatsoever to the Joint Venture or to the other Venturers, even if such business or activity competes with the business of the Joint Venture;

 

2.8. Not Responsible for Other’s Commitments. Neither the Venturers nor the Joint Venture shall be responsible or liable for any indebtedness or obligation of a Venturer incurred either before or after the execution of this Agreement, except as to those joint responsibilities, liabilities, indebtedness or obligations incurred pursuant to the terms of this Agreement, and each Venturer agrees to indemnify and hold the other Venturers and the Joint Venture harmless from such obligations and indebtedness.

 

2.9. Legal Obligations. If any claim, liability or expense shall be asserted against the Joint Venture or a Venturer as a result or consequence of the Joint Venture or the operation and conduct of the business of the Joint Venture, and if the assets of the Joint Venture are insufficient to satisfy the same, each Venturer shall bear a share of any such claim, liability or expense in accordance with its Joint Venture interest at said time, as set forth in Article 5. Each Venturer shall cooperate and consult with the other in defending any such action and in making any settlement or compromise thereof. If any Venturer is required to pay more than its share of a claim against the Joint Venture, it shall be entitled to contribution from the other Venturers and, without limiting the generality of

 

3


 

the foregoing, shall have a prior claim therefor on such other Venturer’s interest in the Joint Venture. Notwithstanding the foregoing, if any claim, liability or expense shall be asserted against the Joint Venture or a Venturer by reason of the sole negligence of a Venturer or an act or omission by a Venturer in violation of this Agreement, then the Venturer committing such negligence or performing such act shall indemnify and save harmless the Joint Venture and the other Venturers from and against any and all loss resulting therefrom. The right of contribution and rights of indemnity contained in this Section shall survive and remain in full force and effect, notwithstanding any termination of the Joint Venture and this Agreement. The provisions of this Section are not intended to and shall not be applicable to any claim or liability with respect to any mortgages, loans, deeds of trust, or other encumbrances against the Real Property which are nonrecourse as to the Joint Venture and the Venturers.

 

2.10. Hotel Venture. The parties anticipate that the Hotel, as defined in Section 2.11, will be developed, owned, and operated by another venture established by the Venturers (the “Hotel Venture”) wherein (i) Company shall contribute ninety percent (90%) of the equity requirement and AVG shall contribute ten percent (10%), with each party having a fifty percent (50%) Percentage Interest and an affiliate of Company shall be the operator of the Hotel pursuant to an operating agreement accepted to the Venturers, or (ii) Company, AVG, and an independent third-party operator (the “Third-Party Operator”) shall each have thirty-three and one-third percent (33.33%) Percentage Interest and the required equity shall be forty-six and one-half percent (46.5%) by Company, forty-six and one-half percent (46.5%) by the Third-Party Operator, and seven percent (7%) by AVG. In addition, AVG shall be designated the Development and Construction Manager for the Hotel pursuant to an agreement acceptable to the Venturers. The parties agree that, under either option, they shall attempt to secure mezzanine debt or other investor participation for up to ninety percent (90%) of the equity requirements for the Hotel Venture. Company and AVG acknowledge that the final determination as to which of the two (2) types of ventures shall be utilized shall be made by Company and AVG after receipt of the final proforma projections for the Hotel, including the debt and equity requirements. The parties agree that each party shall have the opportunity to participate equally in any mezzanine financing for the Hotel; provided, however, Company shall have the right, subject to Mezzanine Lender’s approval, to a minimum of thirty-three percent (33%) participation in the mezzanine financing for th.e Hotel. AVG shall have the option to participate in up to twenty-five percent (25%) of Company’s participation in the mezzanine financing for the Hotel on the same terms and conditions as Company’s participation in the financing. The Venturers agree that AVG shall have the responsibility and authority to handle, on behalf of the Hotel Venture, the day-to-day operating decisions during the development of the Hotel Site through the opening date of the Hotel, including minor lot line adjustments, zoning matters, easements, and other development issues, negotiations with operators, franchisors, investors, and participants, design and engineering issues, preconstruction, and site improvements, provided that AVG obtains the Management Committee’s approval for all binding agreements which are Major Policy Decisions. The Management Committee for the Hotel Venture shall reserve the right and authority to approve all Major Policy Decisions affecting the Hotel Venture or the Hotel. In the event Company has not executed (irregardless of whether AVG has executed or not) a joint venture agreement, in a form similar to this Agreement, to form the Hotel Venture as a general partnership under California law with initial capitalization of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) within forty-five (45) days after the date this Agreement is signed, AVG shall have the right to develop, subject to the terms and conditions in Section 2.11, the Hotel and related improvements on the Hotel Site itself or with the participation of any third party as otherwise provided in this Agreement without regard to this Section 2.10.

 

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2.11. Hotel Site. The Venturers acknowledge the anticipated development of a hotel and conference facility with appropriate amenities and parking facilities (to contain not more than four hundred eight [408] guest rooms, and not to exceed eight [8] stories in height, all collectively referred to herein as the “Hotel”) on the Hotel Site. When the Hotel Site is being developed by the Hotel Venture, at such time as the Hotel Site and the Replacement Site may be legally conveyed, and subject to (i) meeting the requirements of the Textron Loan, and (ii) the execution of the Clubhouse Documentation referenced below, the Venture shall release the Hotel Site from the Real Property which is the subject of this Agreement (and cause the Hotel. Site [in accordance with the Clubhouse Documentation] to be released from any encumbrance securing the Textron Loan and the Club Loans), to be replaced by the Replacement Site. At the closing of the exchange of the Hotel Site and Replacement Site, the Hotel Venture and the Venture will enter into an agreement (the “Clubhouse Documentation’’) to provide the required Clubhouse Facilities, exclusive of the golf course maintenance facilities, on the Hotel Site pursuant to a long-term lease or by recordation of a condominium map for the clubhouse, cart level, and other club facilities with the conveyance of the condominium rights to the portion of the Club Facilities to the Joint Venture on terms acceptable to the Hotel Venture and the Joint Venture, provided the cost to the Joint Venture shall not exceed the budgeted amount, unless agreed to by the parties in writing, for the Club Facilities to be located on the Hotel Site as shown on the Site Plan and the preliminary construction drawings in existence as of the date of this Agreement. The Venture shall also enter into such other usual and customary arrangements with the Hotel Venture for use of the driveway and parking facilities by both the Golf Course Improvements and the Hotel, easements for support, arrangements for the sharing of maintenance and other costs of the parking facilities, driveway (provided that the Venture shall not be responsible for the cost of construction of a parking structure, except that the Venture shall be responsible for the cost to construct an on-grade surface asphalt parking lot required for the Venture’s use, including any drainage or item required to construct a surface parking lot, without regard to the Hotel requirements), reciprocal easements for utilities and access, and other shared facilities, if any, including cost sharing arrangements between. (i) the Hotel Site and the Replacement Site sufficient to provide access to a public street, and (ii) the Hotel Site and the Real Property, on mutually acceptable terms. Following completion of construction of the Golf Course Improvements, the Venture anticipates that some shared use of facilities and services and other cooperative arrangements between the Hotel Venture, the Venture, and the operator of the Hotel is appropriate, and will negotiate such arrangements in good faith. Other than the sharing of expenses for maintenance and similar arrangements described above, the Venturers agree that the Venture and its customers, members, or employees shall not be charged for their use of the parking structure or facilities, which shall be constructed by the owner of the Hotel site. AVG and Company agree that any agreement to which the Venture is a party relating to the Golf Course Improvements or the Real Property (exclusive of the Hotel Site, except for the area included in the Clubhouse Documentation) shall require the approval of both Venturers, such approvals shall not be unreasonably withheld. The Venture shall offer Hotel guest and the Hotel operator the right to reserve tee times in advance and use of the Clubhouse Facilities at fees not to exceed market, and such other privileges as the parties agree. Subject to meeting the requirements of the Textron Loan and the execution of the Clubhouse Documentation, as provided above, the documentation necessary for the replacement and substitution shall be executed by the parties (and, as necessary, the holders of the Club Loans) on the Closing Date and held by AVG or a third-party escrow, as agreed, for use when the Hotel Site and Replacement Site can be legally conveyed, without further consent.

 

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2.12. Commercial Property Joint Venture. The Venturers acknowledge that, in order to develop the Hotel and acquire the Replacement Site, a third joint venture (the “Commercial Property Joint Venture”) will be established between the Venturers to acquire the Commercial Property pursuant to the terms set forth in the proposed purchase and sale agreement being negotiated and to be entered into between the current owner of the Commercial Property and AMH Golf Corp. (the “Purchase Agreement”). Company shall fund ninety percent (90%) and AVG shall fund ten percent (10%) of the equity requirements agreed to by the parties to acquire the Commercial Property pursuant to the terms of the Purchase Agreement. The Purchase Agreement shall be assigned to the Commercial Property Joint Venture after the Commercial Property Joint Venture is established by the Venturers. AVG shall be designated the Development and Construction Manager for the Commercial Joint Venture pursuant to an agreement acceptable to the Venturers. The property lines for the Real Property, the Commercial Property, and the Replacement Site shall be adjusted as set forth on the Site Plan, or as may be subsequently adjusted as agreed to by the parties, subject to the terms and conditions in Subparagraph 2.12.1 below. In the event Company or AVG elects to not participate in the development of Phases II, III, or IV of the Hotel Venture or the Commercial Property Joint Venture, then the Venturer who elects to proceed with the development may purchase the acreage from the applicable Venture at the cost of THREE HUNDRED NINETY-FIVE THOUSAND EIGHT HUNDRED THIRTY DOLLARS ($395,830.00) per acre, plus any interest or other carrying costs calculated on a per-acre basis from the date the Commercial Property is acquired, subject to and conditioned upon the delivery of the Commercial Property Agreement, as defined below, at the closing of the sale. The Venture shall enter into such cooperative agreement, easements, and reciprocal agreement as may be reasonably required by this Venture, the Hotel Venture, or the Commercial Property Joint Venture for the continued development and operation of the remaining property as contemplated pursuant to the terms of this Agreement (the “Commercial Property Agreement”). The Venturers agree that AVG shall have the responsibility and authority to handle, on behalf of the Commercial Property Venture, the day-to-day operating decisions during the development of the Commercial Property, including minor lot line adjustments, zoning matters, easements, and other development issues, negotiations with operators, franchisors, investors, and participants, design and engineering issues, preconstruction, and site improvements, provided that AVG obtains the Management Committee’s approval for all binding agreements which are Major Policy Decisions. The Management Committee for the Commercial Property Venture shall have the right and authority to approve all Major Policy Decisions affecting the Commercial Property Joint Venture or the Commercial Property. In the event Company has not executed (irregardless of whether AVG has executed or not) a joint venture agreement, in a form similar to this Agreement, to form the Commercial Property Venture as a general partnership under California law which provides for a initial capitalization of (i) FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) funded on the execution date, and (ii) approximately TWO MILLION DOLLARS ($2,000,000.00) to be funded on the closing date of the acquisition of the Commercial Property, within forty-five (45) days after the date this Agreement is signed, AVG shall have the right to develop the Commercial Property and related improvements on the Commercial Property itself or with the participation of any third party as otherwise provided in this Agreement, subject only to the obligations recited below in Paragraph 2.12.1.

 

2.12.1. Lot Line Adjustment. The Commercial Property Joint Venture and the Venture, subject to meeting the requirements of the Textron Loan and the execution of the Clubhouse Documentation as provided in Section 2.11, shall execute the necessary documentation to make the lot line adjustments shown on the Site Plan

 

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Venture and the Commercial Property Joint Venture shall execute the cooperative agreements, easements, and reciprocal agreement as may be reasonably required, including, but not limited to, the Commercial Property Agreement referenced above.

 

2.13. Equestrian Easement. The Venture shall accept title to the Real Property subject to a 20’-wide easement for the benefit of the Commercial Property Joint Venture on the perimeter of “Lot 5” of Tract No 14449, and a 20’-wide easement appurtenant for the benefit of the Commercial Property Joint Venture on the perimeter of Parcel I (Lot 1) of Tract Map #13707 as shown on the Site Plan, for equestrian trail purposes, pursuant to a mutually acceptable easement agreement, at the request of the owner of Lot 2 and the Commercial Property Joint Venture. The easement agreement shall provide for the future development and maintenance of the equestrian trail in accordance with trail standards of the County of Orange, at the expense of the holder of the easement. The easement agreement shall provide usual and customary arrangements requiring the holder of the easement (the “Holder”) to (i) install any fencing reasonably requested by either of the Venturers, at the Holder’s costs, to protect the users of the easement from reasonably anticipated hazards, (ii) indemnify and hold the Venture harmless from any and all claims, demands, suits, costs, or expenses arising due to the operation or use of the easement, (iii) secure the approval of the Venture prior to the construction of any improvement in the easement area, which approval shall not be unreasonably withheld, and (iv) maintain liability insurance reasonably requested by the Venturers. Furthermore, AMHC Corp. (or assignee) shall be granted a 1.00-acre easement and 20’-wide easement on the perimeter of Parcel I (Lot 1) of Tract Map 13707 as shown on the Site Plan for equestrian and recreational use with a 1.3-acre maintenance yard site, which site shall be suitable for the maintenance building. AMHC Corp. shall pay the Venture a one time fee of $12,915.00 which is equal to the 1.00-acre pro rata cost as compared to the total Laguna Hills parcel cost ($1,600,000.00 purchase price / 123.9 acres.*.1=$12,915.00). The 20’-wide easement and the 1.00-acre easement located on Parcel 1 of Tract Map 13707 are to be easements in gross to AMHC Corp. and its assignees, which assignees are limited to an affiliate of AMHC Corp. and to the owners of the Hotel Site and/or Lots 1, 2, and 3 of Tract No 14449, said assignment to be in a form approved by the Venturers.

 

2.14. Golf Memberships. The Venturers agree that the Venture shall grant to The Mission Viejo Company (“MVC”) a corporate membership which shall have the right for ten (10) designated executives of MVC (the “MVC Designees”) to play golf on the golf courses owned by the Venture with no greens fees or cart fees charged for the MVC Designee individual round. Any guest rounds, guest cart fees, merchandise, and other charges would be payable by the individuals to the Venture. The rights granted to the MVC Designees are transferable to another executive of MVC upon the written request of MVC; provided, however, in no event shall there be more than ten (10) outstanding MVC Designees at one time.

 

ARTICLE 3.

 

TERM

 

3.1. Term. The Joint Venture shall commence as of the date of this Agreement and shall continue until the dissolution or termination pursuant to the expressed provisions hereof

 

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3.2. Initial Deposit. Upon the execution of this Agreement, Company shall deposit into the Venture’s account the sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) (the “Initial Deposit”), which shall be utilized for (i) TWO HUNDRED THOUSAND DOLLARS ($200,000.00) paid to AVG as reimbursement for cost and expenses incurred to date, which amount shall be credited against the AVG Investment, (ii) TEN THOUSAND DOLLAR ($10,000.00)- per-week accrued payment on the loan commitment fee for the Textron Loan, and (iii) other Expenditures of the Venture. The Initial Deposit shall be a credit against the amount of the Initial Capital Contribution to be funded by Company on the Contribution Date, pursuant to Section 4.1.

 

3.3. Contribution Conditions Precedent. The Venturers acknowledge that the Joint Venture’s construction and development of the Club, as well as each Venturer’s obligation to contribute the Initial Capital Contributions, other than the Initial Deposits, is subject to and conditioned upon the following subsequent conditions precedent (collectively, the “Contribution Conditions Precedent”):

 

3.3.1. Receipt and approval by the Venturers of (i) the final budgeted costs for the Club Facilities, (ii) and construction plans, and (iii) an executed construction contract, for the Golf Course Improvements;

 

3.3.2. Conveyance of the Real Property by AVG to the Joint Venture free and clear of all liens and encumbrances, except for the encumbrances approved in writing by the Venturers, including the deed of trust executed by and between AVG and the Golden Rain Foundation, in the original principal amount of SIX HUNDRED THOUSAND DOLLARS ($600,000.00), recorded July 1, 1996, as Instrument No, 19960337568 in the Official Records of Orange County, California (the “Permitted Encumbrances”);

 

33.3. Funding of the Club Loans, which includes the (i) approval, execution, and satisfaction of the conditions precedent to the funding of the Mezzanine Loan, and (ii) approval, execution, and satisfaction of the conditions precedent to the funding of the Textron Loan;

 

33.4. Full payment of the Primary Loans paid concurrently with funding of Initial Capital Contributions and Mezzanine Loans; and

 

3.3.5. Full payment of the AVG Investment (less the TWO HUNDRED THOUSAND DOLLAR ($200,000.00) payment in Section 3.2 to be credited against the AVG Investment):

 

On the date the Contribution Conditions Precedent are satisfied (the “Closing Date”), the Venturers shall contribute the Initial Capital Contributions set forth in Article 4, subject to Company’s credit for the Initial Deposit.

 

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ARTICLE 4

 

CONTRIBUTIONS TO THE JOINT VENTURE

 

4.1. Initial Capital Contributions. Subject to the satisfaction of the Conditions Precedent, on the Contribution Date, each Venturer shall contribute the following initial capital contributions (the “Initial Capital Contributions”):

 

Venturer 

 

Initial Capital Contribution

 

AVG Equity in Real Property

 

$

240,000.00

 

AVG Cash

 

$

435,000.00

 

Company

 

$

2,025,000.00

 

 

4.2. Initial Capital Account. AVG and Company agree that the initial capital account of the Venturers on the Contribution Date hereof shall be as follows, subject to any adjustment pursuant to Section 4.4:

 

Venturer 

 

Capital Account

 

AVG

 

$

675,000.00

 

Company

 

$

2,025,000.00

 

 

4.3. Mezzanine Loan. The Venturers agree, through their Affiliates (the “Mezzanine Lender”), to loan to the Venture the sum of FIVE MILLION NINE HUNDRED THOUSAND DOLLARS ($5,900,000.00), pursuant to the terms set forth on the Mezzanine Term Sheet (the “Mezzanine Loan”). The mezzanine loan documents to be used for the Mezzanine Loan shall be substantially in the form of the loan documents previously negotiated with Lehman Brothers Holding, Inc. (the “Mezzanine Loan Documents”): The Venturers agree that their respective participation in the Mezzanine Loan shall be (i) seventy-five, percent (75%) by Company (or greater subject to AVG’s participation), and (ii) twenty-five percent (25%) by AVG (or such lesser amount as determined at AVG’s option). The parties anticipate that the initial Mezzanine Loan may be replaced by subsequent mezzanine financing within twelve (12) to eighteen (18) months (the “Subsequent Mezzanine Funding”). In the event Company participates in the Subsequent Mezzanine Financing (which Company has the right to participate at a minimum of thirty-three percent [33%]), AVG shall be entitled to participate in up to twenty-five percent (25%) of Company’s participation in the Subsequent Mezzanine Financing.

 

4.4. Capital Contributions and Obligations. After the Contribution Date, if there is a projected or actual Negative Net Cash Flow or Deficit Capital Costs (including such borrowing made to prevent the Joint Venture from being in default of its obligations under the Club Loans), the Management Committee shall have the option to first utilize any reserve accounts to fund the Negative Net Cash Flow or Deficit Capital Costs. If said funds are not sufficient, then the Management Committee shall (i) utilize any existing bank line of credit available to the Joint Venture, then (ii) if said amount is not sufficient, attempt to secure conventional third party

 

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financing (without providing to the lender any equity participation in the Joint Venture). However, if said conventional financing cannot be obtained, the Management Committee shall attempt to secure debt financing with an equity component or equity financing from a third party or an affiliate of any Venturer (the “Third-Party Equity Loan,” said third party or affiliate being called the “Third-Party Lender”). Each Venturer shall have the option, upon receipt of the proposed terms of the Third-Party Equity Loan, to elect to either (i) have its Percentage Interest diluted pro rata with the other Venturers to provide the equity participation to the Third-Party Lender (the “Equity Interest”), or (ii) make a Capital Contribution to the Joint Venture on the terms and conditions of the Third-Party Equity Loan in an amount equal to its Percentage Interest, or, at such Venturer’s election, a lesser amount than its Percentage Interest of (a) the Negative Net Cash Flow, or (b) the Deficit Capital Costs, as applicable. The portion of any Capital Contribution advanced by a Venturer which constitutes a loan to the Joint Venture shall be deemed to be an “Equity Loan” and shall be entitled to the preferential distributions provided herein. The portion, if any, of such Capital Contribution paid for the Equity Interest shall be accounted for as a Capital Contribution to the Joint Venture, in respect of such Equity Interest, and concurrently with payment of the Capital Contribution, the Venturer shall acquire and receive that portion of the Equity Interest equal to the ratio its Capital Contribution bears to the aggregate Third-Party Equity Loan (including the Capital Contributions of all other Venturers in respect thereof). In the event (i) the Joint Venture cannot obtain a Third-Party Equity Loan or conventional financing, or (ii) the Management Committee elects, at its sole discretion, not to seek said financing, then each Venturer agrees to fund its Percentage Interest of the Capital Contribution. Each Venturer agrees to advance to the Joint Venture its Capital Contribution upon the written request of the Management Committee, within fifteen (15) days thereof. If a requested Capital Contribution is not paid by a Venturer or the Venturer elects to not fund its Percentage Interest of a Capital Contribution within forty-five (45) days after written notice of such request, then the provisions of Section 17.3 may be elected by the remaining Venturers. The parties acknowledge that the obligation to fund the Capital Contributions recited herein does not obligate the Joint Venture to continue to operate at a Negative Net Cash Flow, as said decision shall be in the sole and absolute discretion of the Management Committee.

 

ARTICLE 5.

 

INTEREST OF THE VENTURERS

 

5.1. Percentage Interest. Except as may be otherwise expressly stipulated herein, the interests of the respective Venturers in the assets, liabilities, profits, and losses of the Joint Venture shall be as follows (the “Percentage Interests”):

 

Venturer 

 

Percentage

 

Company

 

50

%

AVG

 

50

%

 

5.2. Allocation of Net Profit. After giving effect to the special allocations set forth in Sections 5.4 and 5.5 below, net profit of the Venture for any fiscal year shall be allocated in the following order of priority:

 

10

 

5.2.1. First, to the Venturers in proportion to their respective Percentage Interests until the cumulative net profit allocated to them under this Paragraph 5.2.1 equals the cumulative net loss allocated to them under Paragraph 5.3.4 below;

 

5.2.2. Second, to each Venturer in proportion to the cumulative net loss allocated to such Venturer under Paragraph 5.3.3 below, until the cumulative net profit allocated to such Venturer under this Paragraph 5.2.2 equals the cumulative net loss allocated to such Venturer under Paragraph 5.3.3 below;

 

5.2.3. Third, to each Venturer in the amount, if any, that the cumulative prior and concurrent distributions to such Venturer of such Venturer’s Priority Return exceeds the cumulative amounts of net profit previously allocated to such Venturer pursuant to this Paragraph 5.2.3; and

 

5.2.4. Thereafter, to the Venturers in proportion to their respective Percentage Interests.

 

5.3. Allocation of Net Loss. After giving effect to the special allocations set forth in Sections 5.4 and 5.5 below, net loss of the Venture for any fiscal year shall be allocated in the following order of priority:

 

5.3.1. First, to the Venturers in proportion to their respective Percentage Interests until the cumulative net loss allocated to them under this Paragraph 5.3.1 equals the cumulative net profit allocated to them under Paragraph 5.2.4 above;

 

5.3.2. Second, to each Venturer in proportion to the cumulative net profit allocated to such Venturer under Paragraph 5.2.3 above, until the cumulative net loss allocated to such Venturer under this Paragraph 5.3.2 equals the cumulative net profit allocated to such Venturer under Paragraph 5.2.3 above;

 

5.3.3. Third, to the Venturers in proportion to and to the extent of their positive capital account balances until their capital account balances have been reduced to zero; and

 

5.3.4. Thereafter, to the Venturers in proportion to their respective Percentage Interests.

 

5.4. Special Allocations. The following special allocations shall be made in the following order:

 

5.4.1. Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the Income Tax Regulations promulgated under the Internal Revenue Code of 1986 (the “Code”), as such regulations may be amended from time to time (the “Regulations”), notwithstanding any other provision of this Article 5, if there is a net decrease in Venture Minimum Gain during any Fiscal Year, each

 

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Venturer shall be specially allocated items of Venture income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Venturer’s share of the net decrease in Venture Minimum Gain determined in accordance with Section 1.704-2(g) of the Regulations. Allocations pursuant to the preceding sentence shall be made in proportion to the respective amounts required to be allocated to each Venturer pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Paragraph 5.4.1 is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.

 

As used herein, “Venture Minimum Gain” shall have the meaning set forth in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.

 

5.4.2. Venturer Nonrecourse Debt Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this Article 5, if there is a net decrease in Venturer Nonrecourse Debt Minimum Gain attributable to a Venturer Nonrecourse Debt during any Fiscal Year, each Venturer who has a share of the Venturer Nonrecourse Debt Minimum Gain attributable to such Venturer Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of Venture income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Venturer’s share of the net decrease in Venturer Nonrecourse Debt Minimum Gain attributable to such Venturer Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(4) of the Regulations. Allocations pursuant to the preceding sentence shall be made in proportion to the respective amounts required to be allocated to each Venturer pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Paragraph 5.4.2 is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.

 

As used herein, “Venturer Nonrecourse Debt Minimum Gain” shall mean an amount, with respect to each Venturer Nonrecourse Debt, equal to the Venture Minimum Gain that would result if such Venturer Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3) of the Regulations.

 

As used herein, “Venturer Nonrecourse Debt” shall have the meaning set forth in Section 1.704-2(b)(4) of the Regulations.

 

As used herein, “Nonrecourse Liability” shall mean a nonrecourse liability as defined in Section 1.704-2(b)(3) of the Regulations.

 

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5.4.3. Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or other period shall be specially allocated to the Venturers in accordance with their respective Percentage Interests.

 

As used herein, “Nonrecourse Deductions” shall have the meaning set forth in Section 1.704-2(b)(1) of the Regulations.

 

5.4.4. Venturer Nonrecourse Deductions. Any Venturer Nonrecourse Deductions for any Fiscal Year or other period shall be specially allocated to the Venturer who bears the economic risk of loss with respect to the Venturer Nonrecourse Debt to which such Venturer Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i)(1) of the Regulations.

 

As used herein, “Venturer Nonrecourse Deductions” shall have the meaning set forth in Sections 1.704-2(i)(1) and 1.704-2(0(2) of the Regulations.

 

5.4.5. Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Venture asset pursuant to Section 734(b) or Section 743(b) of the Code is required, pursuant to subparagraphs (2) or (4) of Section 1.704-1(b)(2)(iv)(m) of the Regulations, to be taken into account in determining capital accounts as a result of a distribution to a Venturer in complete liquidation of such Venturer’s interest in the Venture, the amount of such adjustment to the capital accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Venturers in accordance with their interests in the Venture in the event that Section 1.704-1(b)(2)(iv)(m)(2) of the Regulations applies, or to the Venturer to whom such distribution was made in the event that Section 1.704-1(b)(2)(iv)(m)(4) of the Regulations applies.

 

5.5. Curative Allocations. The allocations set forth above in Section 5.4 (the “Regulatory Allocations”) are intended to comply with certain requirements of the Regulations. It is the intent of the Venturers that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Venture income, gain, loss, or deduction pursuant to this Section 5.5. Therefore, notwithstanding any other provision of this Article 5 (other than the Regulatory Allocations), the Venturers shall make such offsetting special allocations of Venture income, gain, loss, or deduction in whatever manner they determine appropriate so that, after such offsetting allocations are made, each Venturer’s capital account balance is, to the extent possible, equal to the capital account balance such Venturer would have had if the Regulatory Allocations were not part of this Agreement and all Venture items were allocated pursuant to Sections 5.2 and 5.3 above.

 

5.6. Tax Allocations: Section 704(c) of the Code. In accordance with Section 704(c) of the Code and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Venture shall, solely for tax purposes, be allocated to the Venturers so as to take account of the variation between the adjusted basis of such property to the Venture for

 

13


 

federal income tax purposes and its gross fair market value when initially contributed to the capital of the Venture. The Venturers shall have the discretion to choose among the alternatives set forth in the Regulations issued under Section 704(c) of the Code for handling such variation, and, to the extent allowable under the applicable Regulations, different methods may be used for specific assets. Allocations pursuant to this Section 5.6 are solely for purposes of federal and state taxes and shall not affect, or in any way be taken into account in computing, any Venturer’s capital account or share of net profit, net loss, other items, or distributions pursuant to any provision of this Agreement.

 

5.7. Deficit Capital Makeup. Upon the liquidation of any Venturer’s interest in the Joint Venture, said Venturer shall be required to pay a sum to the Joint Venture equal to the deficit balance of said Venturer’s capital account, if any, on or before (i) the end of the taxable year in which the liquidation occurs, or (ii) ninety (90) days after the effective date of said liquidation, whichever occurs first.

 

ARTICLE 6.

 

MANAGEMENT OF THE JOINT VENTURE

 

6.1. Management Committee. The policy decisions of the Joint Venture, including the approval of plans and specifications, budgets, contracts, etc., shall be controlled by a management committee consisting of two (2) members, one being selected by AVG and one by Company, or such additional representatives as may be determined by the agreement of all Venturers (the “Management Committee”). The Venturers shall designate the members to represent them on the Management Committee (the “Members”) in connection with the operation of the Joint Venture. Company has initially designated Mark Dietz, as its Member, and James Maser, as an Alternate Member, and AVG has designated Paul Donnelly as its Member. Until the expiration of one (1) year after the date the Club opens for business, the Venturers may not change their designated Members or Alternate Members without the prior approval of the other Venturer, said consent not to be unreasonably withheld. Each Venturer hereby agrees that its Members shall have the full and complete power and authority to act on its behalf, to execute documents in its name, and to bind it in all matters relating to the Joint Venture and its business. The Venturers shall also designate an “Alternate Member” for each of its Members, which may, in fact, be a committee or co-trustees upon written notice to the other Venturer. Members and Alternate Members shall serve at the will of the Venturer whom they represent, and such service may be terminated by notice from such Venturer to the other Venturers. In the event of the death, incapacity or termination of any Member of a Venturer, its Alternate Member shall serve in its stead until its successor has been appointed by the Venturer whom it represents and the other Venturer has received notice thereof. Each Venturer shall, by notice to the other, immediately designate a successor to any Member or Alternate Member who has ceased to serve by reason of its death, incapacity or termination. The Member shall designate, in writing, an Alternate Member which has the authority to vote on Major Policy Decisions; all other Alternate Members shall not have the authority to vote on Major Policy Decisions.

 

6.2. Meetings of the Management Committee. Regular meetings of the Management Committee shall be held monthly on such day and at such time as may be agreed upon by the Members. Special meetings of the Management Committee may be called at any time by any

 

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Member of the Management Committee upon not less than two (2) days notice; provided, however, a special meeting at which a Major Policy Decision will be considered shall require not less than ten (10) days notice unless waived in writing by both Venturers by a party having authority to vote on a Major Policy Decision. Waiver of notice of special meeting may be made in the same manner as required for Management Committee action as hereinafter set forth. Regular and special meetings shall be held at any place designated from time to time by the Management Committee, and in the absence of such designation, shall be held at the principal offices of the Joint Venture. Any Member unable to participate in a meeting of the Management Committee may designate its Alternate Member to serve in its place at such meeting, and all references herein to “Members of the Management Committee” shall include such Alternate Member when so serving. No regular or special meeting of the Management Committee may be validly held unless the Members thereof are in attendance. The Management Committee shall appoint a secretary who shall prepare minutes of its meetings and place same in a permanent minute book, copies of which minutes shall be distributed to the Venturers within seven (7) days thereafter. An agenda and drafts of all resolutions proposed for approval shall be disseminated to each party’s representative at least two (2) business days prior to the scheduled meeting. Meetings of the Management Committee may be held by telephone conference arrangement or any other manner approved by the members of the Management Committee.

 

6.3. Action by the Management Committee. Each Member of the Management Committee shall be entitled to vote, its Joint Venturers’ respective Percentage Interests as of the date of the vote. A vote of fifty-one percent (51%) (a “Majority Vote”) shall be required for all actions to be taken by the Management Committee and shall be binding on the Venturers.

 

6.3.1. Unanimous Written Consent. Any action may be taken by the Management Committee by obtaining written consent, signed by all of its Members, specifying the action so taken without the necessity of a meeting.

 

6.4. Management. AVG and Company shall have full control of all affairs concerning the Joint Venture and shall serve as joint managing partners (the “Managing Partners”) through the actions of the Management Committee. Subject to the budgets, guidelines, procedures, and restrictions periodically established by the Managing Partners through the Management Committee, the general manager of the Club (the “Club Manager”), with the assistance of the Club Consultant, and the Development and Construction Manager shall perform the duties set forth herein. The Club Manager and the Development and Construction Manager shall report directly to the Management Committee at the monthly meetings of the Management Committee (or such other meetings as may be called by a Member as provided herein). The Venturers agree that all direction and supervision of the Club Manager shall be conducted by the Members at the. Management Committee meetings. In order to insure clear reporting responsibilities, the Venturers agree that neither party, in their individual capacity, shall directly supervise or instruct actions to be taken by the Club Manager or any other employee or agent of the Joint Venture or by the Club Consultant or the Development and Construction Manager, as said actions are to be taken only through the Management Committee, unless agreed to in writing by both Venturers. In the event the Development Management Agreement or the Club Consulting Agreement is terminated, the duties thereunder would then be

 

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performed by the Managing Partners. Some of the duties and responsibilities of the Club Manager and the Development and Construction Manager and the Managing Partners are as follows:

 

6.4.1. Business Plans. The Club Manager shall prepare or cause to be prepared the annual business plans to be submitted to the Management Committee for its review and approval for the operation and development of the Club, which shall include marketing, construction, staffing requirements, cash flow projections, utility requirements, and all other aspects of the operation, development, and marketing of the Club as a high-end daily fee golf course.

 

6.4.2. Golf Course Improvements. The Development and Construction Manager shall (i) prepare (or cause to be prepared) the golf course design proposal and the construction specifications, and (ii) coordinate the Golf Course Improvements construction, including preparation of construction timetables, budgets, coordination of construction specifications, contract award and construction, pursuant to the terms and conditions of the Development and Construction Management Agreement.

 

6.4.3. Budgets. The Club Manager shall prepare or cause to be prepared the budgets provided for in Article 7 to be reviewed by the Club Consultant and submitted to the Management Committee for approval.

 

6.4.4. Day-to-Day Operations. Day-to-day operation of the Club shall be performed by the Club Manager and the employees of the Joint Venture, subject to the Budgets and policies and procedures established by the Management Committee.

 

6.4.5. Coordination. The Managing Partners shall coordinate all actions of the Joint Venture and protect and preserve the title and interest of the Joint Venture with respect to the Property and all contract rights owned by the Joint Venture.

 

6.4.6. Employees. The Club Manager shall, under the direction of the Management Committee, retain, employ (as employees of the Joint Venturer), terminate and coordinate the services of all employees, supervisors, architects, engineers, accountants, attorneys, and other persons necessary or appropriate to carry out the business of the Joint Venture, subject to the restrictions of the Annual Operations Budget. The Management Committee shall approve the hiring and salary levels of those certain key employees designated as Club Manager, the golf teaching pro, the course superintendent and the food and beverage manager, and may require the dismissal of any employee.

 

6.4.7. Debts. The Managing Partners shall pay all debts and other obligations of the Joint Venture, including servicing the Club Loans, to the extent that funds of the Joint Venture are available therefor.

 

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6.4.8. Laws. The Managing Partners shall use their best efforts to cause the Joint Venture to comply with all applicable laws or regulations, whether presently in force or passed in the future.

 

6.4.9. Estimates. The Club Manager shall prepare or cause to be prepared, with the advice and counsel of the Club Consultant, at least fifteen (15) days prior to the beginning of each calendar quarter, the amount of any estimated Negative Net Cash Flow or Deficit Capital Cost for such calendar quarter and submit to the Management Committee.

 

6.4.10. Tax Returns. The Joint Venturer shall hire an independent certified public accounting firm to prepare and submit to the Management Committee for their review, at least fifteen (15) days prior to the due date, a draft of the tax returns required of the Joint Venture. Notwithstanding the foregoing, Company shall be designated as the “Tax Matters Partner” pursuant to Section 6223 of the Internal Revenue Code and shall be responsible for filing the tax returns required of the Joint Venture based on the Financial Statements.

 

6.4.11. Insurance. The Managing Partners shall cause the Joint Venture to carry and maintain comprehensive general liability insurance with (i) bodily injury limits of ONE MILLION DOLLARS ($1,000,000.00) for injury or death to any one person and ONE MILLION DOLLARS ($1,000,000.00) for any one occurrence, (ii) property damage limits of ONE MILLION DOLLARS ($1,000,000.00) for any one occurrence and ONE MILLION DOLLARS ($1,000,000.00) in the aggregate, and (iii) property insurance on all applicable assets owned by the Joint Venture in amounts not less than ninety percent (90%) of the full replacement value, or as may be required by lenders of the Joint Venture.

 

6.4.12. Implementation. The Managing Partners shall implement any and all decisions of the Management Committee and coordinate them with the Club Manager and the Development and Construction Manager as necessary.

 

6.5. Development Fee. The Venturers agree that (i) the Development and Construction Management Agreement shall provide for a development fee of EIGHTEEN THOUSAND SEVEN HUNDRED FIFTY DOLLARS ($18,750.00) per month, payable to the Development and Construction Manager, and (ii) the Club Consulting Agreement shall provide for a pre-opening consulting fee of SIX THOUSAND TWO HUNDRED FIFTY DOLLARS ($6,250.00) per month payable to the Club Consultant, said fees being payable (on a prorated basis) commencing as of the date of funding of the Club Loans as provided in Section 3.3 and continuing on the first day of each month thereafter during the construction period for a maximum of eighteen (18) months.

 

6.6. Consulting Fee. Commencing on the earlier of (i) the date the Club opens for business, or (ii) the date the certificate of occupancy is received for the Club Facilities (the “Club Opening Date”), the Club Consultant shall be paid the following consulting fees pursuant to the Club Consulting Agreement: (a) a consulting fee of SEVENTY-FIVE THOUSAND DOLLARS

 

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($75,000.00) per Fiscal Year, payable in equal monthly installments, said fee to be adjusted annually each January by the percentage increase in the C.P.I. over the preceding calendar year (the “Consulting Fee”), and (b) all out-of-pocket expenses approved in the Budget for special services or subsequently approved by the Management Committee for special services.

 

6.7. Managing Partner’s Percentage Fee. Commencing on the Club Opening Date, AVG and Company, as Co-Managing Partners, shall each be paid a fee equal to (i) five percent (5%) of Gross Revenues, minus (ii) the Consulting Fee paid to Club Consultant for said Fiscal Year, times (iii) fifty percent (50%) , (the “Managing Partner’s Percentage Fee”), which fee shall be payable on a Fiscal Month basis, based on the preceding Fiscal Month’s Gross Revenues.

 

6.8. Accounting Records. The Joint Venture shall contract with ClubCorp Financial Management Company for the maintenance of accounting records and bookkeeping for the Joint Venture, subject to both Venturers’ prior approval of a fee schedule for said services. Such services shall be at a rate which is reasonable and comparable to those rates charged for similar services by comparable accounting firms in Orange County, California. The accounting records and bookkeeping for the Joint Venture shall be electronically linked to each Venturer’s headquarters and will include daily receipt and disbursement information from the operations of the Club. The parties acknowledge that the Management Committee shall have the authority to designate an unaffiliated third party for the maintenance of accounting records and bookkeeping for the Joint Venture if audits, performed pursuant to Article 13 hereof, determine that, on at least three (3) separate occurrences, there has been reported more than a five percent (5%) variance in Positive Net Cash Flow or Negative Net Cash Flow, as the case may be, in the Financial Statements prepared by ClubCorp Financial Management Company.

 

6.9. Costs and Expenditures; No Compensation. Neither the Venturers, the Members of the Management Committee, nor the Managing Partners shall be entitled to any compensation for discharging their obligations under this Agreement or otherwise acting on behalf of the Joint Venture, except for the following: (i) the Managing Partners’ Percentage Fee in Section 6.7, (ii) pre-opening fees and Consulting Fees to the Club Consultant under the Club Consulting Agreement, (iii) development fees to the Development and Construction Manager under the Development and Construction Management Agreement, and (iv) third-party out-of-pocket costs to be reimbursed to a Venturer, funded on behalf of the Venture pursuant to the Budgets approved by the Management Committee.

 

6.10. Replacement. The parties acknowledge that a Venturer may be removed as a Managing Partner and replaced with another party at any time upon written notice to the Managing Partner subject to a vote of fifty-one percent (51%) or greater of the Percentage Interests by the Members of the Management Committee, except for a removal pursuant to Paragraphs 15.1.2 and 15.1.3 hereof.

 

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ARTICLE 7.

 

BUDGETS

 

7.1. Budgets. All budgets for the Joint Venture shall include a projection of (i) Gross Revenues and Expenditures, (ii) Positive Net Cash Flow or Negative Net Cash Flow, as the case may be, (iii) Capital Costs, and (iv) Capital Contributions, if so projected, and the estimated timing thereof. The budgets described in Paragraphs 7.1.1 and 7.1.2 shall be presented on a Fiscal Month basis in reasonable detail and in a format similar to the Financial Statements (collectively, the “Budgets”).

 

7.1.1. Annual Operations Budget. The parties acknowledge that they have agreed to a proforma estimated operations budget for Gross Revenues and Expenditures, balance sheet, and cash flow statements for the period from the Closing Date through Fiscal Year end 1997 (the “1997 Budget”) and January 1, 1998, through Fiscal Year end 1998 (the “Initial Annual Operations Budget”), Which may be amended by the Management Committee. For each Fiscal Year thereafter, not later than forty-five (45) days prior to the beginning of each Fiscal Year, the Club Manager, with the advice and counsel of the Club Consultant, shall prepare (or cause to be prepared) and deliver to the Management Committee for its review and approval a budget for Gross Revenues and Expenditures, a balance sheet, and cash flow statements for said Fiscal Year (the “Annual Operations Budget”).

 

7.1.2. Capital Expenditures Budget. Not later than forty-five (45) days prior to the beginning of each Fiscal Year after the initial Fiscal Year, the Club Manager, with the advice and counsel of the Club Consultant, shall prepare (or cause to be prepared) and deliver to the Management Committee for its review and approval a budget for Capital Costs for such Fiscal Year (the “Capital Expenditures Budget”).

 

ARTICLE 8.

 

DISTRIBUTION OF POSITIVE NET CASH FLOW

 

8.1. Positive Net Cash Flow. The Venturers agree that a conservative financial approach will be utilized in the disbursements of Positive Net Cash Flow, and that Positive Net Cash Flow shall be distributed only on the basis of prudent business judgment if said funds are not required for the ongoing development and operation of the Real Property, as determined by the Management Committee. In the event Positive Net Cash Flow is available for distribution within thirty (30) days following the close of each Fiscal Quarter, the amount of Positive Net Cash Flow generated by the Joint Venture shall be distributed in the order set forth below:

 

8.1.1. Payment of Deficit Loans. If either Venturer fails to make, or elects to not fund, a required Capital Contribution or any other contribution and the other Venturer advances such amount as provided herein, then said Venturer’s Percentage Interest of Positive Net Cash Flow to be distributed as provided below shall be

 

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distributed to the Venturer making such Deficit Loan, until the principal and interest accrued thereon are paid in full.

 

8.1.2. Payment of Equity Loans. Any remaining Positive Net Cash Flow shall be applied to the outstanding balance of any Equity Loan until paid in full, including any accrued interest thereon.

 

8.1.3. Payment of Priority Return. Any remaining Positive Net Cash Flow shall be distributed pro rata to the Venturers in an amount equal to the excess, if any, of the aggregate cumulative Priority Return from the inception of the Joint Venture to the end of such Fiscal Quarter over the sum of all prior distributions to the Venturers pursuant to this Paragraph 8.1.3.

 

8.1.4. Distribution and Equalization of Capital Accounts. Continuing until the Venturers’ Capital Accounts have been equalized, any remaining Positive Net Cash Flow shall be distributed-to the Venturers as follows: (i) fifty percent (50%) of the Positive Net Cash Flow shall be distributed to the Venturers as follows:

 

 

Venturer

 

Percentage

 

 

 

 

 

 

 

 

 

Company

 

75

%

 

 

AVG

 

25

%

 

 

and (ii) fifty percent (50%) of the Positive Net Cash Flow shall be distributed to the Venturers in accordance with their respective Percentage Interest at the time of such distribution.

 

8.1.5. Distribution. Any remaining Positive Net Cash Flow after payment of the items referenced above shall be distributed to the Venturers in accordance with their respective Percentage Interest at the time of the distribution.

 

8.2. Refinance and Sale Proceeds. The Venturers agree that proceeds from a refinance of the Club Loans or from a sale of the Property shall be included in Gross Receipts and distributed to the Venturers in accordance with the terms of this Agreement.

 

ARTICLE 9.

 

AVG’s COVENANTS AND REPRESENTATIONS

 

9.1. AVG makes the following representations to the other Venturers, which representations shall, unless otherwise stated herein, survive the execution and delivery of this Agreement:

 

9.1.1. Corporate Status. AVG is a limited partnership duly organized, validly existing, and in good standing under the laws of California, with full power to enter into this Agreement and execute all documents required hereunder, evidence of

 

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which shall include, but shall not be limited to, a good standing certificate of limited partnership, which shall be furnished to the other Venturers.

 

9.1.2. Authorization. The making, execution, delivery and performance of this Agreement by AVG has been duly authorized and approved by all requisite action of the partners of AVG, and this Agreement has been duly executed and delivered by AVG and constitutes a valid and binding obligation of AVG, enforceable in accordance with its terms.

 

9.1.3. Violation of Representations. From and after the date hereof and until the termination of this Agreement, neither AVG nor any of its affiliates shall take any action, or omit to take any action, which action or omission would have the effect of violating any of the material covenants, representations and warranties of AVG contained in this Agreement.

 

9.1.4. Violation of Agreement. Neither the execution and delivery of this Agreement by AVG or its affiliates or AVG’s performance of its obligations hereunder will result in a violation or-breach of any material term or provision, or constitute a material default, or accelerate the performance required under any other material agreement or document to which AVG or its affiliates are a party or are otherwise bound, and will not, to the best of AVG’s or its affiliates’ knowledge, constitute a violation of any law, ruling, regulation or order to which AVG or its affiliates are subject.

 

9.1.5. Documentation. If necessary to carry out the intent of this Agreement, AVG agrees to execute and provide to the Venturers any and all other instruments, documents, conveyances, assignments and agreements which the Venturers may reasonably request in connection with the duties and obligations set forth herein.

 

ARTICLE 10.

 

COMPANY’S COVENANTS AND REPRESENTATIONS

 

10.1. Company makes the following representations to the other Venturers, which representations shall, unless otherwise stated herein, survive the execution and delivery of this Agreement:

 

10.1.1. Corporate Status. Company is a corporation duly organized, validly existing, and in good standing under the laws of California, with full corporate power to enter into this Agreement and execute all documents required hereunder, evidence of which shall include, but shall not be limited to, a good standing certificate, which shall be furnished to the other Venturers.

 

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10.1.2. Authorization. The making, execution, delivery and performance of this Agreement by Company has been duly authorized and approved by all requisite action of the Board of Directors of Company, and this Agreement has been duly executed and delivered by Company and constitutes a valid and binding obligation of Company, enforceable in accordance with its terms.

 

10.1.3. Violation of Representations. From and after the date hereof and until the termination of this Agreement, neither Company nor any of its affiliates shall take any action, or omit to take any action, which action or omission would have the effect of violating any of the material covenants, representations and warranties of Company contained in this Agreement.

 

10.1.4. Violation of Agreement. Neither the execution and delivery of this Agreement by Company or its affiliates or Company’s performance of its obligations hereunder will result in a violation or breach of any material term or provision, or constitute a material default, or accelerate the performance required under any other material agreement or document to which Company or its affiliates are a party or are otherwise bound, and will not, to the best of Company’s or its affiliates’ knowledge, constitute a violation of any law, ruling, regulation or order to which Company or its affiliates are subject.

 

10.1.5. Documentation. If necessary to carry out the intent of this Agreement, Company agrees to execute and provide to the Venturers any and all other instruments, documents; conveyances, assignments and agreements which the Venturers may reasonably request in connection with the duties and obligations set forth herein.

 

ARTICLE 11.

 

PROHIBITED TRANSACTIONS AND AFFILIATED RELATIONSHIPS

 

11.1. Prohibited Transactions. During the time of the organization or continuance of the Joint Venture, no Venturer shall (except to the extent otherwise provided herein) do any of the following:

 

11.1.1. Use the name of the Joint Venture (or any substantially similar name) or any trademark or trade name adopted by the Joint Venture except in the ordinary course of the Joint Venture’s business;

 

11.1.2. Disclose to any outside person, other than employees, advisors, agents, accountants, or attorneys of the Joint Venturers or as required under legal process, any of the Joint Venture’s business practices, trade secrets, or any other information not generally known to the business community;

 

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11.1.3. Do any other act or deed with the intention of harming the operations of the Joint Venture;

 

11.1.4. Do any act contrary to this Agreement except with the prior express approval of all the Venturers;

 

11.1.5. Do any act which would make it impossible to carry on the intended or ordinary business of the Joint Venture;

 

11.1.6. Confess a judgment against the Joint Venture;

 

11.1.7. Possess Joint Venture property or assign the right of the Joint Venture or the Venturers in specific Joint Venture property for other than a Joint Venture purpose;

 

11.1.8. Make, execute or deliver any general assignments for the benefit of creditors, or any bond, guaranty, indemnity bond or surety bond;

 

11.1.9. Assign, transfer, pledge, compromise or release any claim of the Joint Venture, except for full payment or arbitrate, or consent to the arbitration of any of its disputes or controversies;

 

11.1.10. Create any personal liability for a Venturer other than that personal liability to which a Venturer may have agreed to in writing; or

 

11.1.11. Admit another person or entity as a Venturer.

 

11.2. Self-Dealing. Except as specifically approved by the Management Committee, no Venturer shall profit from its dealings with the Venture except through distribution of proceeds and profits of the Venture in the manner provided in this Agreement. Any contracts between the Venture and any company or person controlled by, controlling, or under common control with any Venturer (collectively, “Controlled Parties”) shall be at rates comparable to the rates prevailing in south Orange County, California, for similar services of comparable quality, complexity, and frequency. For purposes of this Article, “control” shall mean the authority to direct fifty-one percent (51%) of the interests or voting rights in any entity. Subject to Section 6.8 hereof, the Management Committee shall retain (i) the financial management and accounting expertise of ClubCorp Financial Management Company, an Affiliate of Company) which shall provide accounting services, including, but not limited to, establishment and use of computer programs and billing and accounting systems, or (ii) the services of any other affiliated corporations, so long as the rates charged therefore are substantially comparable to the rates charged in the immediately comparable Orange County, California, market for equally comparable services in said market.

 

11.3. Company Programs. Company shall make available or cause to be made available to the Club Manager and the Joint Venture, as applicable, during the period Company is a Venturer and the Joint Venture owns the Club without charge, all rebates, discounts, purchasing credits, and

 

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marketing and promotional opportunities available to Company or any Controlled Parties as part of its or their national accounts programs or otherwise available to Company or Controlled Parties from wholesalers, manufacturers, and other providers, without adjustment or mark-up; and any reciprocal or promotional rights and privileges available to users of other public golf facilities owned or managed by Company or any Controlled Parties. In addition, during the period the Club Consulting Agreement is in effect, the Club Manager and the Joint Venturer shall be entitled to use the operating manuals for public golf course operations utilized by the Club Manager at no charge. Company further agrees that, as long as Company is a Venturer and the Joint Venture owns the Club, if Company or its Affiliates elect to list the Club in its local or national publications, such listing shall be without charge or royalty fees to the Joint Venture unless Company or its Affiliates charges other public golf facilities owned by Company or its Affiliates for such listing. The parties agree in any event that the Club shall be listed in “The Guide” section (or its comparable section) of “The Private Club” magazine (while it is published) at no charge to the Joint Venture during the Term of the Joint Venture. The cost of any cooperative advertising between the Club and the Affiliates shall be on a reasonable pro rata basis, subject to the Management Committee’s approval as to the Club’s participation in the cooperative advertising program. Upon termination of this Agreement, all proprietary information owned by Company or any of the Controlled Partners, including any operating and training manuals, shall be returned to Company or Controlled Parties within ten (10) days. Notwithstanding the foregoing, any operating manuals which are “site specific” and were created specifically for the benefit of the Joint Venture shall remain at the Club. Additionally, Company shall cause Club Corporation of America to enter into a license agreement with the Joint Venture in the form attached hereto as Exhibit F.

 

ARTICLE 12.

 

CLUB LOAN

 

12.1. Club Loans. In addition, the Venturers agree to use their best efforts to acquire on or before June 20, 1997, approximately TWENTY-THREE MILLION DOLLARS ($23,000,000.00) financing acceptable to both parties to cover the development and operating capital needed to commence the development of the Club. The Venturers anticipate that not more than approximately ten percent (10%) of the total cost to acquire, develop, and construct the Club will be in the form of Initial Capital Contributions of the Venturers, payable as provided in Article 4. The balance of the financing will be nonrecourse on terms mutually agreeable to the Venturers.

 

12.2. Guarantee of Club Loans. Pursuant to Section 12.1 herein, and as provided in the project budget, the general contractor under the Construction Contract shall provide completion guarantees to the Construction Lender. In addition, the Textron Loan shall be guaranteed by Paul Donnelly during the construction period only with the guarantee limited to one hundred percent (100%) of the loan plus one hundred percent (100%) of all accrued interest. In the event Paul Donnelly is required to fund any portion of the completion or payment guaranty, the Venturers each agree to fund the guaranty agreement (i) in the same ratio as the Venturers’ Initial Capital Contribution up to a cumulative total for both Venturers of ONE MILLION DOLLARS ($1,000,000.00), and (ii) thereafter fifty percent (50%) by each Venturer, unless the additional amount paid is due to a default by the “Project Manager” under the Project Development and

 

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Management Agreement. If a Venturer does not fund their pro rata share, the other Venturer shall not be required to fund the Capital Contribution. The Venturers acknowledge that, following completion, no Venturer has agreed to guarantee all or a portion of the Venture debt to Club Lenders or any Third-Party Equity Lender or otherwise pledge any asset as security for such debt. The Venturers agree that, following completion of the Improvements and initial opening for business of the Club Facilities, neither Venturer shall, except as may be required pursuant to the Joint Venture Agreement in connection with the sale of a Venturer’s interest in the Joint Venture to the other Venturer, be required to guarantee or otherwise pledge collateral in support of any loan to the Venture unless an equivalent guarantee or pledge is required of all Venturers, in proportion to their respective interests.

 

ARTICLE 13.

 

BOOKS, RECORDS, AUDITS, TAXES, ETC.

 

13.1. Books; Statements. Subject to the Venturers’ approval of the accounting fee schedule, the Joint Venture shall contract with ClubCorp Financial Management Company (“CFMC”), the cost of which shall be an Expense of the Joint Venture separate and apart from the Consulting Fee, to keep accurate, fall and complete records, books and accounts, on an accrual basis, pursuant to Section 6.8, showing exclusively the Joint Venture’s assets and liabilities, operations, transactions and financial condition. The Financial Statements shall be accurate in all, material respects, shall present fairly the financial position and results of operation of the Joint Venture, and shall be prepared in accordance with generally accepted accounting principles consistently applied over the periods reflected thereby. CFMC shall furnish, or cause to be furnished, the Financial Statements, including income statements, cash flow statements, and a balance sheet, to the Joint Venture within thirty (30) days following the close of each Fiscal Month and each Fiscal Quarter; however, unaudited Financial Statements shall be furnished within sixty (60) days following the close of the Fiscal Year and audited Financial Statements, if required, shall be furnished within every ninety (90) days following the close of the Fiscal Year. Except as specifically provided in this Agreement, the Management Committee shall determine which accounting firm shall maintain the accounting records, the methods to be used in the preparation of the Financial Statements, and the federal, state and municipal income and franchise tax returns for the Joint Venture in connection with all items of income and expense, including, but not limited to, valuation of assets, the methods of depreciation, elections, credits and accounting procedures. Provided, however, (i) all construction period real estate taxes and interest of the Joint Venture shall be capitalized as required by Section 263A of the Internal Revenue Code (the “Code”), (ii) depreciation shall be deducted on the accelerated basis, and (iii) in the case of a distribution of a property which is made in the manner provided in Section 734 of the Code, or in the case of a transfer of Joint Venture interest which is permitted by this Agreement and which is made in the manner provided in Section 734 of the Code, then, upon the request for the distribution of such property by the transferee of such Joint Venture interest, the Joint Venture shall file an election under Section 754 of the Code in accordance with the procedures set forth in the Treasury regulations applicable thereto. The Joint Venture will not be responsible for the booking or reporting of any basis adjustments on behalf of the Venturers who are affected by an election under Section 754 of the Code. Each Venturer must make any adjustments necessary due to such an election on its individual return.

 

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13.2. Where Maintained; Availability. The books, accounts and records of the Joint Venture shall be maintained at its principal office, or at such other place as may be designated from time to time by the Management Committee, and shall at all reasonable times be available for inspection and copying (upon termination of the Joint Venture) by the Venturers and their representatives.

 

13.3. Audits. Any Venturer may, at its option and at its own expense, arrange for the conducting of an internal audit of the books, records and accounts of the Joint Venture. Audits may be on either a continuous or a periodic basis, or both.

 

13.4. Independent Audit. The Management Committee reserves the right to require that the Joint Venture, upon a Majority Vote of the Members, to conduct an independent audit of its books, records and accounts on an annual basis. Such independent audit shall, if requested, be conducted annually, and shall be submitted to the Management Committee for its review upon completion.

 

13.5. Other Information. The Managing Partners may release information concerning the operations of the Joint Venture to such sources as is required by law or regulation, by any lender, or by order of any regulatory body. The Managing Partners shall furnish the Venturers or their representatives any further information in such form as they may reasonably request relative to any phase of the operations of the Joint Venture. All Venturers and their representatives shall have free access during normal business hours to all records relative to the operations of the Joint Venture. For the term of the Joint Venture, and for a period of four (4) years thereafter, the Managing Partners shall maintain and preserve all books of accounts and other relevant documents. Before disposing of said records, the Managing Partners shall offer the records to AVG to maintain with their records.

 

13.6. Banking. The funds of the Joint Venture shall be kept in such accounts as may be designated by the Management Committee. All withdrawals therefrom shall be made on such signature or signatures as shall be designated by the Management Committee. There shall be no commingling of the funds of the Joint Venture with the funds of any other entity or person.

 

13.7. Tax Returns; Review. The Joint Venture shall be treated as a partnership for federal, state and municipal income tax and franchise tax purposes, but this shall not be construed to extend the purposes or business of the Joint Venture. The Tax Matters Partner shall prepare or cause to be prepared (the cost of which shall be an Expense) all federal, state and municipal partnership tax returns required to be filed in accordance with the provisions of this Agreement, and shall submit the same to each Venturer for review no later than the fifteenth day of May of the year following the tax year.

 

ARTICLE 14.

 

DISSOLUTION

AND LIQUIDATION OF THE JOINT VENTURE

 

14.1. Dissolution Events. The Joint Venture shall be dissolved in the manner hereinafter provided upon the happening of any of the following events:

 

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14.1.1. The sale of all or a substantial portion of the Property (to the extent that operators cannot continue) owned by the Joint Venture;

 

14.1.2. The agreement of the Venturers of the Joint Venture to dissolve the Joint Venture or sell all or substantially all of the assets of the Joint Venture;

 

14.1.3. The closing of the put option or right of first refusal, referenced in Article 16, and only one Venturer is remaining in the Joint Venture;

 

14.1.4. The occurrence of any other event causing the dissolution of the Joint Venture by operation of law unless the Joint Venture is reinstated by the consent of both Venturers; or

 

14.1.5. The entry of a final judgment, order or decree of a court of competent jurisdiction adjudicating the Joint Venture to be bankrupt, and the expiration without appeal of the period, if any, allowed by applicable law for appeal.

 

14.2. Method of Liquidation. Upon the happening of any of the events hereinabove specified, the Venturers shall immediately commence to wind up the affairs of the Joint Venture and shall liquidate the assets of the Joint Venture as promptly as possible, unless the Venturers shall determine that an immediate sale of the Joint Venture’s assets would cause undue loss to the Venturers, in which event (i) the liquidation may be deferred for a reasonable time, and/or (ii) all or part of the Joint Venture’s assets may be distributed in kind. The proceeds from liquidation of the Joint Venture, including repayment of any debts of the Venturers to the Joint Venture, shall be applied in the order of priority as follows:

 

14.2.1. To the satisfaction of debts of the Joint Venture other than to the Venturers; provided, however, if the Joint Venture makes distributions in kind of undivided interests in the Joint Venture’s property which secures mortgage indebtedness, then each of the Venturers receiving such distribution of property in kind, subject to such mortgage indebtedness, shall be severally liable (as among each other, but not for the benefit of third parties) for its proportionate part of such mortgage indebtedness (which need not be paid or otherwise discharged out of the proceeds of liquidation) in proportion to its interest in such property so distributed; provided, further, that no Venturer intends hereby to incur (except as among each other, and then only to the extent of the value of its interest), nor does it assume, any liability on any such mortgage indebtedness which it has not previously incurred under the terms of the instrument creating said mortgage indebtedness; then

 

14.2.2. To the establishment of any reserves deemed reasonably necessary or appropriate by the Venturers for any contingent or unforeseen liabilities or obligations of the Joint Venture. Such reserves established hereunder shall be held for the purpose of paying any such contingent or unforeseen liabilities or obligations and, at the expiration of such period, as the Venturers may reasonably deem

 

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advisable, for distributing the balance of such reserves in the manner provided hereinafter in this Section; then

 

14.2.3. To the repayment of any liabilities or debts, other than capital accounts, of the Joint Venture to any of the Venturers; then

 

14.2.4. To the payment pro rata to the Venturers of an amount equal to the excess, if any, of the aggregate cumulative Priority Return from the inception of the Joint Venture to the date such distribution is made over the sum of all prior distributions to the Venturers pursuant to Paragraph 8.1.3 hereof and this Paragraph 14.2.4; and then

 

14.2.5. The balance, if any, to the payment to each Venturer of the positive balance of its capital account after giving effect to all contributions, distributions, and allocations for all periods.

 

14.3. Date of Termination. The Joint Venture shall be terminated and dissolved when all of the cash or property available for application and distribution under the preceding Section shall have been applied and distributed in accordance with such Section. The establishment of any reserves in accordance with the preceding Section shall not have the effect of extending the term of the Joint Venture, but any such reserve shall be distributed in the manner provided in such Section upon the expiration of the period of such reserve.

 

ARTICLE 15.

 

TRANSFER OF JOINT VENTURE INTEREST

 

15.1. Transfer of Interest. Except for the Permitted Transfers described below, no Venturer shall sell, transfer, assign, mortgage or otherwise hypothecate all or any part of its interest in the Joint Venture without the prior written consent of the other Venturers. The sale, issuance, or transfer of any voting stock or partnership interest of a Venturer or any voting capital stock of any corporate entity which directly controls a Venturer which is a limited partnership shall be deemed to be a transaction requiring prior written consent of the other Venturer pursuant to this Section. No Venturer shall have any authority to transfer, convey, mortgage or otherwise hypothecate any of the assets of the Joint Venture without the prior written consent of the other Venturers. The following transfer or assignments of a Venturer’s interest in the Joint Venture or voting stock or partnership interest shall be permitted without obtaining the consent of the other Venturer (the “Permitted Transfers”):

 

15.1.1. The assignment or transfer by Company or AVG of all or a portion of its interests in the Joint Venturer to an Affiliate of Company or AVG, as applicable;

 

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15.1.2. The assignment or transfer by AVG or Company to a company which AVG, or an Affiliate of AVG, or Paul N. Donnelly has an interest in, and Paul N. Donnelly has control of the operation and management of the entity or this particular asset, including, but not limited to, the right to unilaterally make any decisions on behalf of the entity as a Member of the Management Committee of this Venture. In the event, for any reason, Paul N. Donnelly loses control of said entity or asset, including the right of Paul N. Donnelly or a person under his control to vote as a Member of the Management Committee, then Company shall immediately thereafter have, during said period, two (2) votes in lieu of one (1) vote on the Management Committee and the replacement entity shall have one (1) vote;

 

15.1.3. The pledge and collateral assignment of a Venturers’ interest in the Joint Venture to a third-party institution lender with assets in excess of FIFTY MILLION DOLLARS ($50,000,000.00) (or such lesser amount as agreed to in writing by all Venturers) (the “Institutional Lender”) as security for a loan to the Venturer for any business reason. However, in the event of a default of a loan from an Institutional Lender by a Venturer which results in the Institutional Lender assuming said Venturer’s position and obligation as a Venturer, then the other Venturer shall immediately be substituted as the Managing Partner of the Joint Venture without a vote of the Management Committee or the Venturers. Any loan documentation shall require that the Institutional Lender give the other Venturer notice of default and opportunity to cure said default within ten (10) days after said notice. Any amounts advanced to remedy the cure by the other Venturer shall be considered a Deficit Loan; and

 

5.1.4. The pledge and collateral assignment of a Venturer’s interest in the Joint Venture to a third-party lender (“Financing Lender”) with assets less than FIFTY MILLION DOLLARS ($50,000,000.00) as security for a loan to a Venturer in order for a Venturer to make a Capital Contribution. However, in the event of a default of a loan from a Financing Lender by a Venturer which results in the Financing Lender giving notice of its intent to enforce its security interest and/or attempting to foreclose on a Venturer’s interest, then the other Venturer shall immediately be substituted as the Managing Partner of the Joint Venture without a vote of the Management Committee or the Venturers. Any loan documentation shall require that the Financing Lender give the other Venturer notice of a default and opportunity to cure within thirty (30) days after said notice. Any amounts advanced to remedy the cure by the other Venturer shall be considered a Deficit Loan.

 

ARTICLE 16.

 

PUT PROVISIONS / RIGHT OF FIRST REFUSAL

 

16.1. Put Option. After the first twenty-four (24) months of operation of the Club, in the event the Management Committee is unable to reach agreement on any essential decision required to be made for the continued operation of the Club, or the Venturers are unable to agree on a course

 

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of action requiring the unanimous consent of the Venturers under this Agreement, despite, in each case, good faith attempts by the deadlocked parties to meet on at least three (3) separate occasions and attempt to reach agreement, then Company, at any time after said date, may elect to exercise the following put option (the “Put Option”) by notifying, in writing, AVG of such election (the “Sell Notice”), to sell out to AVG, at the option of Company, as follows:

 

16.1.1. The Sell Notice shall contain (i) a statement of Company’s valuation in cash of Company’s ownership interest in the Joint Venture based on Company’s then-existing Percentage Interest (the “Valuation Amount”), and (ii) the notice that Company is willing and offers at once to AVG its interest in the Joint Venture (“Company’s Interest”) for a cash price based upon said Valuation Amount.

 

16.1.2. AVG agrees to purchase from Company all of Company’s Interest in the Joint Venture, for a price (the “Purchase Price”) equal to the lesser of (1) the Valuation Amount established by Company, or (ii) ninety-seven percent (97%) of the appraised value of Company’s Interest (the “Appraised Value”) established pursuant to Article 18 hereof based on the greater of (a) a valuation based on the value of the Real Property, or (b) a valuation based on operation as an ongoing business.

 

16.1.3. AVG shall buy Company’s Interest in the Joint Venture within the later to occur of (i) six (6) months after receipt of the Sell Notice, or (ii) three (3) months after receipt of the appraisal established pursuant to Article 18, at a time and place in Aliso Viejo, Orange County, California, agreed to by the parties within said period. AVG shall have the option to buy Company’s Interest on an installment basis, with a minimum down payment at the closing equal to twenty percent (20%) of the Purchase Price, the remaining balance to be paid over a 24-month period provided (i) Company consents to such installment sale, which consent shall not be unreasonably withheld by Company, (ii) the sale is evidenced by a promissory note (the “Note”) provided to the Company or; at Company’s election, a licensed lender in the State of California, with an annual percentage interest rate equal to the lesser of fifteen percent (15%) or the maximum interest rate allowed by law in California, which is secured by a second-lien deed of trust (acceptable to the holder of any Club Loan), a security agreement, and an assignment and security agreement covering the Venturer’s Percentage Interest, in form and substance reasonably acceptable to Company, containing standard lender-required representations and covenants reasonably acceptable to Company to be recorded against the Property and AVG’ s Percentage Interest in the Joint Venture (or such other security acceptable to Company), (iii) the appointment of a third-party independent management company reasonably acceptable to Company to operate and manage the Property, and. (iv) the Joint Venturers have mutually agreed upon the Annual Operations Budget and Capital Expenditures Budget for the Joint Venture during the term of the Note. If the sale is unable to be secured by a second-lien deed of trust due to the requirements of the holder of any Club Loan, Company’s Interest in the Joint Venture will be held in escrow pursuant to an escrow agreement reasonably acceptable to both parties Trail Company has been paid in full by AVG. As long as AVG is not in default on

 

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the Note or the terms and conditions of the sale of Company’s Interest, Company will have no voting rights while Company’s Interest is held in escrow. The foregoing mandatory purchase and sale rights and obligations are subject to specific enforcement. All expenses and fees (excluding legal fees) in connection with closing and such sale(s) shall be paid equally by AVG and Company. Each Venturer shall be responsible for their own legal fees incurred in connection with the sale, except for an Event of Default to be settled in accordance with the arbitration provisions of Article 19 hereof.

 

16.1.4. At the closing of the sale of Company’s Interest in the Joint Venture, the following shall occur: (i) AVG shall deliver the Purchase Price in cash concurrently or in installments subject to the provisions of Paragraph 16.1.3 to Company, and (ii) Company shall execute and deliver to AVG all assignments and other reasonable documents necessary to transfer Company’s Interest in the Joint Venture, free and clear of any claims, liens or encumbrances, other than Permitted Exceptions and those incurred by the Joint Venture.

 

16.1.5. Upon payment, Company shall have no further interest in the Joint Venture, and AVG shall indemnify Company against all obligations duly authorized and incurred in connection with the operation of the Joint Venture, as well as any and all claims, actions, demands, expenses, and liabilities arising after Closing, if any (including any indebtedness secured by the Property of the Joint Venture to third party creditors of the Joint Venture).

 

16.2. Default of AVG on Put Option. In the event AVG fails or refuses to purchase Company’s Interest in the Joint Venture pursuant to Company’s exercise of the Put Option set forth in Section 16.1 above, Company shall have the option to purchase AVG’s interest in the Joint Venture on the same terms as those established for the Put Option, unless such purchase by AVG would constitute an event of default under any of the Club Loans (in which case Company shall have no such option, unless said default is waived by the lender). Upon payment, AVG shall have no further interest in the Joint Venture, and Company shall indemnify AVG against all obligations duly authorized and incurred in connection with the operation of the Joint Venture, as well as any and all claims, actions, demands, expenses, and liabilities arising after Closing, if any (including any indebtedness secured by the Property of the Joint Venture to third-party creditors of the Joint Venture).

 

16.3. Right of First Refusal. At any time during the Term, each Joint Venturer shall (except for Permitted Transfers under Article 15-which transfers are excluded from the terms of this Section 16.3), grant the other Joint Venturer a right of first refusal, provided the Venturer is not in Default, to purchase (i) their respective ownership interest, including any Percentage Interest, in the Joint Venture or (ii) any interest in AVG, its general partner, successor and assigns, or AVG’s Permitted Transfers if Paul N. Donnelly does not maintain control of said entity or asset, including the right of Paul N. Donnelly or a person under his control to vote as a Member of the Management Committee (the “Controlling Interest”) for the price offered by a bona fide third party and acceptable to a Joint Venturer.

 

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16.4. Exercise of Right of First Refusal. In the event the Seller desires to sell its Percentage Interest or a Controlling Interest in the Venturer to any unrelated third party (the “Third-Party Purchaser”), and it shall receive a bona fide written offer (the “Offer”) to purchase its Percentage Interest or Controlling Interest which is acceptable to such Joint Venturer (the “Seller”), the other Joint Venturer (the “Non-Seller”) shall be furnished specific written notice, including a copy of the Offer (the “Notice of Sale”). The Non-Seller or its affiliates shall have thirty (30) days after receipt of the Notice of Sale to elect to purchase the Seller’s Percentage Interest or Controlling Interest pursuant to the specific terms set forth in the Offer, subject to the following conditions:

 

16.4.1. The Notice of Sale shall state that a bona fide offer has been received by the Seller from a Third-Party Purchaser and shall contain a copy of the Offer.

 

16.4.2. The Non-Seller shall have the option, for a period of thirty (30) days from the date of such Notice of Sale, within which to exercise its option to purchase the Seller’s Percentage Interest or Controlling Interest pursuant to the specific terms set forth in the Offer. In the event the Non-Seller elects to exercise its option to acquire the Seller’s Percentage Interest or Controlling Interest , the Non-Seller shall notify the Seller of its election in writing prior to the expiration of such 30-day period (the “Election Notice”). Should the Non-Seller fail to or be unwilling to exercise its option to purchase the Seller’s Percentage Interest or Controlling Interest by sending the Election Notice within the 30-day period, then the Non-Seller shall be deemed to have waived its rights hereunder and the Seller shall be free to proceed with its sale to the Third-Party Purchaser. The purchaser must be the Third-Party Purchaser and the terms and conditions upon which the Third-Party Purchaser purchases the Seller’s Percentage Interest or Controlling Interest may not be more favorable to the Third-Party Purchaser than those terms contained in the Offer. If the Seller fails to close the purchase and sale with the Third-Party Purchaser within one hundred eighty (180) days from the date of the Notice of Sale, then for all purposes the Non-Seller’s right of first refusal is reestablished.

 

16.4.3. In the event the Non-Seller shall forward its Election. Notice to the Seller within the 30-day period, then the parties shall proceed with the closing of the purchase and sale of the Seller’s Percentage Interest or Controlling Interest by the Non-Seller in accordance with the specific terms set forth in the Offer; provided, however, the Non-Seller shall not be obligated to close the purchase and sale prior to the sixtieth day after the receipt of the Election Notice by the Seller at the offices of the Seller. The parties shall use their best efforts to close the purchase and sale prior to the ninetieth (90th) day after the receipt of the Election Notice by the Seller, and, if the purchase and sale has not closed (other than by mutual agreement of the Seller and the Non-Seller) prior to the one hundred eightieth (180th) day after receipt of the Election Notice by the Seller due to the actions of the Non-Seller, then the Non-Seller shall be deemed to have waived its rights hereunder and the Seller shall be free to proceed with its sale to the Third-Party Purchaser.

 

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16.4.4. The Right of First Refusal shall not apply to the sale of a Joint Venturer’s Percentage Interest by an Institutional Lender or Financial Lender at a foreclosure sale.

 

16.5. Obligation to Sell. Neither Venturer shall have the obligation to sell less than all of the Percentage Interest in the Joint Venture or Controlling Interest being sold pursuant to the Offer.

 

ARTICLE 17.

 

DEFAULT BY A VENTURER

 

17.1. Even of Default. The following events shall be deemed to be events of default by a Venturer (“Events of Default”):

 

17.1.1. Failure of a Venturer to make, when due, any Capital Contribution or advance required to be made under Article 4 or under the terms of this Agreement and the continuance of such failure for a period of thirty (30) days after written notice thereof from a nondefaulting Venturer to the other Venturers;

 

17.1.2. If any Venturer shall fail in the performance of or compliance with any of the covenants, agreements, terms or conditions contained in this Agreement, other than that referred to in the foregoing Paragraph and such failure shall continue for a period of forty-five (45) days after written notice thereof from one Venturer to the other Venturers, specifying in detail the nature of such failure, or in the case such failure cannot with due diligence be cured within such period of forty-five (45) days, the Venturer fails to proceed promptly and with all due diligence to cure the same and thereafter to prosecute the curing of such failure with all due diligence (it being intended that in connection with a failure not susceptible of being cured with due diligence within thirty (30) days, that the time within which to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence);

 

17.1.3. If any Venturer shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under the present or future applicable federal bankruptcy act, or any other present or future applicable federal, state or other statute or law relative to bankruptcy, insolvency or other relief for debtors, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of said Venturer, or of all or any substantial part of its properties or its interest in the Joint Venture [the term “acquiesce” includes but is not limited to the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within thirty (30) days after the appointment];

 

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17.1.4. If a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against any Venturer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act, or any other present or future applicable federal, state or other statute of law relating to bankruptcy, insolvency or other relief for debts and said Venturer shall acquiesce in the entry for such order, judgment or decree [the term “acquiesce” includes but is not limited to the failure to file a petition or motion to vacate or discharge such order, judgment or decree within ten (10) days after the entry of the order, judgment or decree], or such order, judgment or decree shall remain unvacated and unstayed for an aggregate of ninety (90) days (whether or not consecutive) from the date of entry thereof, or any trustee, receiver, conservator or liquidator of said Venturer, or of all or any substantial part of its property or its interest in the Joint Venture shall be appointed without the consent or acquiescence of said Venturer and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive);

 

17.1.5. Any Venturer shall admit in writing its inability to pay its debts as they mature; or

 

17.1.6. The appointment of a receiver for all or substantially all of the assets of a Venturer and the failure to have such receiver discharged within thirty (30) days after appointment.

 

17.2. Effect of Default. Upon the occurrence of an Event of Default by a Venturer, the other Venturers shall have the right to cause the Joint Venture to pay the defaulting Venturer the fair market value of its interest in the Joint Venture, determined pursuant to the provisions of Article 18, based on the Venturer’s Percentage Interest, after deducting all Equity Loans, set out in Section 4.4, all Deficit Loans, set out in Paragraph 17.3.1 hereof, damages sustained by the Joint Venture, and taking into consideration any outstanding indebtedness, liabilities, liens and obligations relating to the Property for the purchase and redemption of its interest in the Joint Venture.

 

17.2.1. Pursuit of the foregoing remedies shall not preclude pursuit of any other remedies herein provided or any other remedies provided by law, including a suit for damages, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any amount due by a defaulting Venturer hereunder or of any damages accruing by reason of the violation of any of the terms, provisions and covenants herein contained. A defaulting Venturer shall be responsible for the payment of all attorneys’ fees reasonably incurred by the Joint Venture and interest on all amounts by which the defaulting Venturer is indebted to the Joint Venture hereunder at the highest lawful rate.

 

17.2.2. No waiver of any violation shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained and forbearance to enforce one or more of the remedies

 

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herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default.

 

17.2.3. Each Venturer hereby agrees that in the event it shall default as hereinabove provided, it shall execute and deliver such conveyances, agreements, notes, instruments, or other documents which may be necessary to confirm and render fully effective the transfer of the defaulting Venturer’s interest as herein provided. Notwithstanding anything contained in this Paragraph, any such relinquishment and transfer as herein provided shall not relieve the defaulting Venturer from any obligation or liability under this Agreement which may have accrued prior to the date of such relinquishment and transfer.

 

17.3. Failure to Make a Capital Contribution. In the event a Venturer fails to make a required Capital Contribution when due, under Section 4.4, and said default is not cured within the time period provided herein, then the nondefaulting Venturer shall have the right, but not the obligation, to pursue any of the remedies provided below, in addition to, and not in lieu of, any remedies provided in Section 17.2.

 

17.3.1. Deficit Loan. The nondefaulting Venturer, at its option, may pay to the Joint Venture the entire Capital Contribution on behalf of the defaulting Venturer. Any such Capital Contribution made by the nondefaulting Venturer on behalf of the defaulting Venturer shall be deemed to be a “Deficit Loan.” Any Deficit Loan shall bear interest at the lesser of (i) the highest rate allowed by law, or (ii) twenty percent (20%). If the nondefaulting Venturer chooses to make a Deficit Loan, the defaulting Venturer shall not be deemed to be in default for that nonpayment pursuant to Paragraph 17.1.1 or 17.1.2 hereof. Notwithstanding anything to the contrary, a Venturer and its Affiliates shall not earn or be paid any management fees or development fees of any nature during the period the Venturer has an outstanding Deficit Loan payable to the other Venturer.

 

ARTICLE 18.

 

PROCEDURE FOR APPRAISEMENT

 

18.1. Selection of Appraisers. Within fifteen (15) days after an appraisal is required under any provision hereof, or after the Sell Notice is received pursuant to Paragraph 16.1.1 hereof, AVG and Company shall mutually select an appraiser. The appraiser selected shall be MAI certified with experience on same or similar-type properties, if possible. If the parties cannot mutually agree on one appraiser within such 15-day period, then each Venturer shall select a MAI-certified appraiser with experience on same or similar properties, if possible, within fifteen (15) days. If either party fails to name an appraiser within the specified time, the other party may select the second appraiser.

 

18.2. Determination of Fair Market Value. The appraiser, or two appraisers if necessary, so selected shall proceed to promptly determine the fair market value of the Joint Venture’s interest, including therein a fair market valuation of the interest and equity in the Joint Venture of the

 

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Venturers in question, taking into consideration any outstanding indebtedness, liabilities, liens and obligations within forty-five (45) days after the last of the appraisers is selected. The final determination of the appraiser, or two appraisers if necessary, shall be final and binding upon all the parties; provided, however, if two appraisers are necessary and the two appraisers so selected are unable to agree upon such fair market value, said two appraisers shall select a third appraiser, whose determination as to such fair market value shall be averaged with the appraisals of the other two appraisers, and the average of the three appraisals shall be conclusive evidence as to such fair market value and shall be final and binding upon all parties. The appraiser or appraisers shall deliver a written report of their appraisal to the Venturers, who shall provide copies thereof to all interested parties.

 

18.3. Fees and Expenses. The fee and expenses of a single appraiser mutually chosen by the parties shall be borne equally by the parties. If two appraisers are necessary, each party shall pay the fee and expense of the appraiser selected by such party, and if a third appraiser is selected, the fee of the third appraiser shall be borne equally by the parties appointing the other two appraisers.

 

ARTICLE 19.

 

MISCELLANEOUS

 

19.1. Arbitration. Any dispute or controversy arising out of or relating to this Agreement or a breach thereof shall be settled by binding arbitration administered in accordance with this Section. An arbitration is commenced by either party delivering to the other written notice (an “Arbitration Notice”) specifying the nature of the dispute, and the amount (if any) involved, which Arbitration Notice shall also be delivered to the office of JAMS/Endispute located in Orange County (City of Orange), California (“JAMS”). The arbitrator shall be selected according to the then-applicable JAMS rules, provided that the arbitrator shall be in all cases a retired judge in the State of California who is a neutral person with no financial or personal interest in the result of the arbitration or any present relationship with the parties or their counsel. The arbitrator appointed shall convene in Orange County, California, within thirty (30) days after the appointment of the arbitrator, and shall render a decision and award as promptly as possible, and in any event, within thirty (30) days after the conclusion of the arbitration hearing. Such decision and award shall be in writing and counterpart copies thereof shall be delivered to each of the parties. In rendering the decision and award, the arbitrator shall not add to, subtract from, or otherwise modify the provisions of this Agreement. The decision and award of the arbitrator shall be final and shall not be subject to appeal and judgment may be entered on the decision and the award so rendered in any court having complete jurisdiction. The parties acknowledge and agree that, except as provided below, arbitration pursuant to this Section is the exclusive means by which the parties will resolve their disputes.

 

19.1.1. Specific Provisions. The following provisions shall apply to any arbitration instituted pursuant to this Section:

 

19.1.1.1. Arbitration Rules. The arbitration shall be determined in accordance with the California Arbitration Act, Section 1280 et seq. of the California Code of Civil Procedure and the

 

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rules then in use by JAMS, as supplemented by this Section (or, if it shall not then be in existence, such other organization, if any, as shall then become the successor of said organization, or, if there be no successor, then pursuant to the Commercial Arbitration Rules of the American Arbitration Association if then in existence, and, if not, then pursuant to applicable laws of the State of California.

 

19.1.1.2. Limited Discovery and Evidence Rules. The arbitrator shall limit requests by the parties for the production of documents and other records to those necessary to the decision on the issue before the arbitrator. Except as modified by this clause, California law, including California evidence law, shall be applied to determine all arbitrated issues, and the discovery law and rules applicable to California Superior Court cases in Orange County shall be applied.

 

19.1.1.3. Fees and Expenses. Each Party shall bear the costs and expenses of the arbitration and all legal fees and costs incurred by it in connection with the arbitration.

 

19.1.1.4. Cross-Examination. The arbitration shall not permit the submission of affidavits as evidence without providing for the ability to cross-examine.

 

19.1.1.5. Injunctive Relief. The application for, or pendency of, any arbitration shall not limit or delay the right of any party to seek temporary injunctive relief (during the pendency of such arbitration) from the appropriate court with regard to the matter being arbitrated.

 

19.2. Waiver of Trial by Jury. To the maximum extent permitted by law, AVG and Company each hereby knowingly, voluntarily, and intentionally waive the right to a trial by jury in respect of any litigation based hereon, arising out of, under, or in connection with this Agreement, or any course of conduct, course of dealing, statement (whether verbal or written), or action of either party or any exercise by either party of its respective rights under this Agreement or in any way relating to the Club Facilities (including, without limitation, any action to rescind or cancel this Agreement, and any claim or defense asserting that this Agreement was fraudulently induced or is otherwise void or voidable). This waiver is a material inducement for each party to enter this Agreement.

 

19.3. Exhibits. The Venturers hereby covenant and agree that each Exhibit attached hereto is incorporated herein as if fully set forth herein, and to the extent the Exhibits attached to this Agreement are incomplete on the date hereof; such Exhibits shall be completed and attached to this Agreement as quickly as possible, using all due diligence. To the extent this Agreement may be rendered unenforceable by the lack of completion of any of the Exhibits, such defect in this

 

37


 

Agreement shall be cured as such incomplete Exhibits are made complete in accordance with this Section.

 

19.4. Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and (i) delivered personally, (ii) forwarded by prepaid telegram, or (iii) sent by certified mail, return receipt requested, postage prepaid, addressed as shown below, or to such other address as the party concerned may substitute by written notice to the other. All notices personally delivered shall be deemed received on the date of delivery. All notices forwarded by prepaid telegram shall be deemed received two (2) days after the date same are sent. All notices forwarded by mail shall be deemed received on a date seven (7) days (excluding Sundays and legal holidays when the U.S. mail is not delivered) immediately following date of deposit in the U.S. mail; provided, however, the return receipt indicating the date upon which all notices were received shall be prima facie evidence that such notices were received on the date on the return receipt.

 

If to AVG:

 

ALISO VIEJO GOLF, LP

 

 

c/o Aliso Viejo Golf Corporation

 

 

6 Upper Newport Plaza

 

 

Newport Beach, California 92660

 

 

Attention: Mr. Paul N. Donnelly

 

 

 

 

 

With a copy to:

 

 

McDermott, Will & Emery

 

 

1301 Dove Street, Suite 500

 

 

Newport Beach, California 92660

 

 

Attention: Ms. Jill Draffin

 

 

 

If to Company:

 

LEGAV CORPORATION

 

 

P.O. Box 819012

 

 

Dallas, Texas 75381-9012

 

 

Attention: President

 

 

 

 

 

LEGAV CORPORATION

 

 

P.O. Box 819012

 

 

Dallas, Texas 75381-9012

 

 

Attention: Mr. Mark Dietz

 

 

 

 

 

LEGAV CORPORATION

 

 

P.O. Box 819012

 

 

Dallas, Texas 75381-9012

 

 

Attention: Mr. Terry Taylor, General Counsel

 

 

 

 

38


 

 

 

With a copy to:

 

 

ADDISON LAW FIRM,

 

 

a Professional Corporation

 

 

14901 Quorum Drive, Suite 650

 

 

Dallas, Texas 75240

 

 

Attention: Mr. Randolph D. Addison

 

The addresses and addressees may be changed by giving notice of such change in the manner provided herein for giving notice. Unless and until such written notice is received, the last address and addressee given shall be deemed to continue in effect for all purposes.

 

19.5. Independent Corporation. AVG recognizes and acknowledges that Company is an independent corporation, capitalized with One Thousand Dollars ($1,000.00), chartered under the laws of the State of California, and is solely responsible for the obligations and liabilities recited herein, arising hereunder, or in any manner related to the transactions contemplated hereby, and AVG further recognizes and acknowledges that no other entity or entities, including (i) Company’s parent corporation, (ii) any individual, or (iii) any corporation affiliated with Company, is in any manner liable or responsible for the obligations and liabilities of Company, whether recited herein, arising hereunder, or in any manner related to the transactions contemplated hereby.

 

19.6. Assignment. Except as expressly provided herein, this Agreement and any documents executed in connection herewith shall not be assigned by any Venturer without the prior written consent of the other Venturers.

 

19.7. Public Announcements. No party hereto shall make any public announcement or press release concerning this Agreement or the transactions contemplated herein except as may be mutually agreed upon by the parties.

 

19.8. Severability. Should any portion of this Agreement be deemed unenforceable by a court of competent jurisdiction, the remaining portion hereof shall remain unaffected and be interpreted as if such unenforceable portions were initially deleted.

 

19.9. Approvals. Any consent or approval of either party referred to herein (by whatever words used) shall not be unreasonably withheld or delayed, and neither party shall seek or obtain any payment in connection therewith as a condition therefor. Except as otherwise expressly provided herein, whenever either party has called upon the other to execute and deliver a consent or approval in accordance with the terms of this Agreement, the failure of such party to respond to the demand within fifteen (15) days after written request therefor, or such other period as may be specifically set forth herein, shall be deemed to be a consent or approval. In the event that either party refuses to give its consent or approval to any request by the other, such refusing party shall indicate by notice to the other the reason for such refusal.

 

19.10. lntegrated Agreement. This Agreement constitutes the entire agreement between the parties hereto and there are no agreements, understandings, warranties or representations between the parties other then those set forth herein.

 

39


 

19.11. Development and Construction of Agreement. This Agreement concerns property situated in the State of California and shall be deemed to be a contract made under the laws of said state.

 

19.12. Amendment and Waiver. This Agreement may not be amended or modified in any way except by instrument in writing executed by all parties hereto; provided, however, any Venturer may, in writing (1) extend in writing the time for performance of any of the obligations of the other, (ii) waive in writing any inaccuracies and representations by the other contained in this Agreement, (iii) waive in writing compliance by the other with any of the covenants contained in this Agreement, and (iv) waive in writing the satisfaction of any condition that is precedent to the performance by the party so waiving of any of its obligations under this Agreement.

 

19.13. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and assigns where permitted herein.

 

19.14. Unavoidable Delay. The provisions of this Section shall be applicable if there shall occur during the term of this Agreement any (i) strike(s), lockout(s) or labor dispute(s), (ii) inability to obtain labor or materials, or reasonable substitutes therefor, (iii) acts of God, governmental restrictions, regulations or controls, enemy or hostile governmental action, civil commotion, fire, or other casualty, or (iv) other conditions similar to those enumerated in this Section beyond the reasonable control of the party obligated to perform. As the result of any of the above-described events, if the parties hereto shall fail punctually to perform any obligation on its part to be performed under this Agreement, then, upon written notice to the other, within ten (10) days of such event, such failure shall be excused and not be a breach of this Agreement by the party claiming an unavoidable delay, but only to the extent occasioned by such event. If any right or option of either party to take any action under or with respect to the term of this Agreement is conditioned upon the same being exercised within any prescribed period of time or at or before a named date, then such prescribed-period of time or such named date shall be deemed to be extended or delayed, as the case may be, upon written notice, as provided above, for a time equal to the period of the unavoidable delay. Notwithstanding anything contained herein to the contrary, the provisions of this Section shall not be applicable to the parties’ obligation to pay any sums, monies, costs, charges or expenses required to be paid pursuant to the terms of this Agreement.

 

19.15. Documentation. If necessary to carry out the intent of this Agreement, each party agrees to execute and provide to the other party any and all other instruments, documents, conveyances, assignments anal. agreements which may be necessary to effectuate, carry out and perform the terms, provisions and conditions of this Agreement.

 

40


 

IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.

 

AVG:

 

 

 

ALISO VIEJO GOLF, LP,

 

 

a California limited partnership

 

 

 

 

 

 

By:

Glenwood Golf Corporation,

 

 

 

a California corporation

Attest:

 

 

its general partner

 

 

 

 

 

 

 

 

 

 

/s/ [Illegible]

 

 

By:

/s/ Paul Donnelly

Title:

Controller

 

 

Titl e:

President

 

Company:

 

 

 

 

LEGAV CORPORATION,

Attest:

 

a California corporation

 

 

 

 

 

 

 

 

 /s/ [Illegible]

 

By:

 /s/ Mark dietz

Title:

Ass. Secretary

 

Title:

Vice President

 

41

 

EXHIBITS TO JOINT VENTURE AGREEMENT

 

BY AND BETWEEN
ALISO VIEJO GOLF, LP
AND
LEGAV CORPORATION

 

 

E:\addison1b4927.01\142.009x.wpd

 

PROJECT LEGAL DESCRIPTION

 

A

COMMERCIAL PROPERTY DESCRIPTION

 

B

SITE PLAN

 

C-1, C-2

EASEMENT PROPERTY

 

D

DEFINITIONS

 

E

FORM OF LICENSE AGREEMENT

 

F

 


 

PROJECT LEGAL DESCRIPTION

 

EXHIBIT A

 

DESCRIPTION

 

THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, AND IS DESCRIBED AS FOLLOWS:

 

PARCEL A:

 

LOT 1 OF TENTATIVE TRACT NO, 13707, BEING A SUBDIVISION OF:

 

PARCEL 3 OF PARCEL MAP NO. 95-133 AS SHOWN ON A MAP FILED IN BOOK 290, PAGES 14 TO 19 OF PARCEL MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.

 

EXCEPTING THEREFROM ONE-HALF OF ALL GAS, OIL, HYDROCARBONS, MINERALS AND OTHER SUBSTANCES LYING BELOW A DEPTH OF 500 FEET, BUT WITHOUT THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE OF’ THE PROPERTY ABOVE A DEPTH OF 500 FEET FOR ANY PURPOSE WHATSOEVER, AS RESERVED BY FIRST WESTERN BANK AND TRUST COMPANY, A CORPORATION, IN THE DEED RECORDED DECEMBER 4, 1961 IN BOOK 5931, PAGE 586 OF OFFICIAL RECORDS, AND RE-RECORDED DECEMBER 11, 1961 IN BOOK 5939, PAGE 534 OF OFFICIAL RECORDS.

 

PARCEL B:

 

THOSE PORTIONS OF THE SOUTHEAST QUARTER OF SECTION 32 AND THE SOUTHEAST QUARTER OF SECTION 33, ALL IN TOWNSHIP 6 SOUTH, RANGE 8 WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF FILED IN THE GENERAL LAND OFFICE ON JANUARY 1, 1874 DESCRIBED AS FOLLOWS:

 

BEGINNING AT THE CENTERLINE INTERSECTION OF CALLE SONORA OESTE AND CALLE SONORA ESTE, AS SHOWN ON MAP OF TRACT NO. 7935, IN SAID COUNTY, RECORDED IN BOOK 340, PAGES 14 THROUGH 18 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY; THENCE LEAVING SAID INTERSECTION NORTH 59 DEG. 32’ 22” EAST 601.17 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 82 DEG. 57’ 15” EAST 89.68 FEET; THENCE SOUTH 54 DEG. 08’ 49” EAST 169.03 FEET; THENCE SOUTH 29 DEG. 36’ 16” EAST 303.64 FEET; THENCE SOUTH 65 DEG. 35’ 32” EAST 540.32 FEET; THENCE NORTH 24 DEG. 24’ 28” EAST 491.98 FEET; THENCE NORTH 21 DEG. 55’ 19” WEST 274.09 FEET; THENCE NORTH 32 DEG. 00’ 20” EAST 113.21 FEET; THENCE SOUTH 68 DEG. 33’ 08” EAST 300.83 FEET; THENCE SOUTH 35 DEG. 45’ 42” EAST 237.84 FEET; THENCE SOUTH 29 DEG. 41’ 38” EAST 139.29 FEET; THENCE SOUTH 29 DEG. 44’ 41” WEST 225.74 FEET; THENCE SOUTH 80 DEG. 47’ 20” WEST 262.38 FEET; THENCE SOUTH 24 DEG. 24’ 28” WEST 366.57 FEET; THENCE SOUTH 6 DEG. 09’ 18” EAST 245.58 FEET; THENCE SOUTH 46 DEG. 41’ 05” WEST 345.00 FEET; THENCE NORTH 48 DEG. 13’ 55” WEST 679.53 FEET; THENCE NORTH 24 DEG. 19 02” WEST 262.27 FEET; THENCE NORTH 37 DEG. 10’ 27” WEST 150.60 FEET; THENCE NORTH 16 DEG. 21’ 54” WEST 262:64; THENCE NORTH 02 DEG; 42’ 02” EAST 212.24’ FEET TO THE TRUE’POINT OF BEGINNING.

 

ALSO EXCEPTING ONE-HALF OF ALL GAS, OIL, HYDROCARBONS, MINERALS AND OTHER SUBSTANCES LYING BELOW A DEPTH OF 500 FEET, BUT WITHOUT THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE OF THE PROPERTY ABOVE A DEPTH OF 500 FEET FOR ANY PURPOSE WHATSOEVER, AS RESERVED BY FIRST WESTERN BANK AND TRUST COMPANY, A CORPORATION IN THE DEED RECORDED DECEMBER 4, 1961 IN BOOK 5931, PAGE 586 OF OFFICIAL RECORDS, AND RECORDED DECEMBER 13, 1961 IN BOOK 5939, PAGE 534 OF OFFICIAL RECORDS.

 

1


 

DESCRIPTION

 

THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, AND IS DESCRIBED AS FOLLOWS:

 

PARCEL A:

 

LOTS 4 AND 5 OF TRACT NO. 14449, AS SHOWN ON A MAP FILED IN BOOK 693, PAGES 46 TO 50, INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.

 

EXCEPTING THEREFROM ONE HUNDRED PERCENT (100%) OF ALL RIGHTS TO OIL, GAS AND OTHER HYDROCARBON AND MINERAL SUBSTANCES LYING UNDER OR THAT MAY BE PRODUCED FROM THE ABOVE DESCRIBED LAND, TOGETHER WITH ONE HUNDRED PERCENT (100%) OF ALL RIGHTS TO THE PROCEEDS THEREFROM AND ONE HUNDRED PERCENT (100%) OF ALL RENTS, BONUSES AND PROFITS ACCRUING THEREFROM; WITHOUT, HOWEVER, ANY RIGHTS INCLUDING RIGHTS OF ENTRY IN OR WITH RESPECT TO ANY PORTION OF THE SURFACE OR SUBSURFACE TO A VERTICAL DEPTH OF 500 FEET FROM THE SURFACE, AS THE SAME MAY FROM TIME TO TIME EXIST, BY DEEDS RECORDED SEPTEMBER 20, 1976 IN BOOK 11908, PAGES 567 AND 568 OF OFFICIAL RECORDS.

 

2


 

COMMERCIAL PROPERTY DESCRIPTION

 

PARCEL ONE:

 

Lots 1, 2 and 3 of Tract No. 14449, Recorded on December 15, 1992, in Book 693 at Pages 46 through 50, inclusive, of Miscellaneous Maps of Orange County, California.

 

EXCEPTING AND RESERVING UNTO GRANTOR, its successors or assigns, together with the right to grant and transfer all or a portion of the same, as follows:

 

A. All previously unreserved minerals, oil, gas, petroleum and other hydrocarbon substances in or under or which may be produced from said Property which underlies a plane parallel to and five hundred feet (500’) below the present surface of said Property for the purpose of prospecting for, the exploration, development, production, extraction and taking of said minerals, oil, gas, petroleum and other hydrocarbon substances from said Property but without the right to enter upon the surface or any portion thereof above said plane parallel to and five hundred feet (500’) below the present surface of the said Property for any purpose whatsoever.

 

B. Easements for access, ingress, egress, maintenance, repair and for other purposes all as described in (i) the Declaration of Covenants, Conditions and Restrictions for Aliso Viejo Community Association, dated April 1, 1982, and recorded on April 6, 1982, as Instrument No. 82-118353, of Official Records of Orange County, California, and (ii) the Notice of Annexation and Supplemental Declaration of Covenants, Conditions and Restrictions for Lots 1, 2 and 3, Tract 14449 (Delegate District No. 25) of Aliso Viejo Community Association to be recorded in the Official Records of Orange County, California (collectively, the “Declaration”).

 

PARCEL TWO:

 

Nonexclusive easements for access, ingress, egress, maintenance, repair and for other purposes, all as described in the Declaration.

 

SAID DESCRIPTION TO BE MODIFIED PURSUANT TO THE LOT LINE ADJUSTMENTS BETWEEN THE HOTEL SITE, COMMERCIAL.PROPERTY, AND REAL PROPERTY SET FORTH ON THE SITE PLAN, ATTACHED AS EXHIBIT C-1 AND EXHIBIT C-2.

 


 

EASEMENT PROPERTY

 

DEPICTION OF EQUESTRIAN EASEMENT HELD BY GOLDEN RAIN FOUNDATION

 

The Equestrian Easement is shown as “Recreational Equestrian Center” on this description:

 

[Map]

 


 

DEFINITIONS

 

All capitalized terms referenced or used in the Joint Venture Agreement (the “Agreement”) and not specifically defined therein shall have the meaning set forth below in this Exhibit E, which is attached to and made a part of the Agreement for all purposes. The section, paragraph and exhibit references herein refer to the Sections, Paragraphs and Exhibits in and to the Agreement.

 

1.1. Act. The term “Act” shall mean the California Uniform Partnership Act, as from time to time amended.

 

1.2. Affiliate. The term “Affiliate” shall mean (i) if Venturer is a corporation, a corporation which wholly owns the Venturer or an entity wholly owned by either a Venturer or an entity which wholly owns the Venturer; a partnership whose general partners are such entities; or a limited liability company whose members are such entities; or (ii) if the Venturer is a partnership, an entity which has such relationship to Venturers’ general partners.

 

1.3. Annual Operations Budget. The term “Annual Operations Budget” shall be defined as the annual operations budget of the Joint Venture to be prepared pursuant to Paragraph 7.1.1.

 

1.4. AVG Investment. The term “AVG Investment” shall mean AVG’s initial costs to date expended in connection with the acquisition and development of the South Tract and the North Tract, including deposits, carrying costs, development advances, property taxes, and similar expenses, but excluding costs paid with proceeds from the Primary Loans. AVG will supply documentation acceptable to Company to justify said costs.

 

1.5. Budgets. The term “Budgets” shall have the meaning set forth in Section 7.1.

 

1.6. C.P.I. The term “C.P.I.” shall mean the Consumer Price Index for All Urban Consumers, All Items (1982-84=100), from time to time published by the Bureau of Labor Statistics, United States Department of Labor for Aliso Viejo, Orange County, California, or if none is published for said city, then the metropolitan area closest to the city in which the Property is situated and for which the Bureau of Labor Statistics does publish such information. In the event the Consumer Price Index shall be discontinued, the Bureau of Labor Statistics shall be requested to furnish a new index comparable to the Consumer Price Index, together with information which will make possible the conversion of the new index. If for any reason the Bureau of Labor Statistics does not furnish such index and information, the parties hereto shall thereafter accept and use such other index or comparable statistics regarding the cost of living for Aliso Viejo, Orange County, California, or the closest metropolitan area for which the Bureau of Labor Statistics does publish such information, as the case may be, which shall be computed and published by an agency of the United States or by a responsible financial periodical or recognized authority then to be selected by the parties. Notwithstanding the foregoing, the parties agree that the increase in the C.P.I. shall not. exceed three percent (3%) per year during the term of the Agreement.

 

1


 

1.7. Capital Contributions. The term “Capital Contributions” shall mean (i) the Initial Capital Contributions, and (ii) the amount a Venturer advances to the Joint Venture as a loan and/or capital contribution pursuant to the provisions of Section 4.4 hereof to fund a Venturer’s Percentage Interest or a lesser portion of any (i) Negative Net Cash Flow, or (ii) Deficit Capital Costs incurred by the Joint Venture.

 

1.8. Capital Costs. The term “Capital Costs” shall mean the amount of investment required to be expended by the Joint Venture to fund (i) the construction of the Improvements and development of the Club, and (ii) any capital improvements or replacements, if any, to the Improvements, as provided for in the Capital Expenditures Budget

 

1.9. Capital Expenditures Budget. The term “Capital Expenditures Budget” shall be defined as the budget for capital expenditures of the Club as set forth in Paragraph 7.1.2.

 

1.10. Capital Reserve. The term “Capital Reserve” shall mean those amounts periodically established by the Management Committee, as defined herein, and allocated to an account for capital replacements and repairs and capital improvements approved by the Management Committee within and to the Club.

 

1.11. Closing Date. The term “Closing Date” shall have the meaning set forth in Section 3.3.

 

1.12. Club. The term “Club” shall be defined as the club facilities to be built and known as “Aliso Viejo Golf Club at Aliso Viejo” located on the Real Property.

 

1.13. Club Consultant. The term “Club Consultant” shall mean GGC Management, Inc., a California corporation, owned by one of the Venturers, which is contemporaneously herewith entering into the Club Consulting Agreement with the Joint Venture.

 

1.14. Club Consulting Agreement. The term “Club Consulting Agreement” shall mean the Club Consulting Agreement of even date herewith by and between the Joint Venture and the Club Consultant pursuant to which the Club Consultant is retained to manage the Club.

 

1.15. Club Facilities. The term “Club Facilities” shall be defined as the facilities to be built (including the Golf Course Improvements, clubhouse facility, other clubhouse facilities, clubhouse. grounds, parking lots, and golf course maintenance building), located on the Real Property.

 

1.16. Club Loans. The term “Club Loans” shall be defined as the approximate amount of TWENTY-THREE MILLION DOLLAR ($23,000,000.00) loans to be made by Textron Financial Corporation and the Mezzanine Lender, or such other lender or lenders mutually acceptable to AVG and Company, to the Joint Venture for the construction and development costs of the Improvements.

 

1.17. Commercial Property. The term “Commercial Property” shall be defined as those certain tracts of land, described on Exhibit B attached hereto.

 

2

 

1.18. Construction and Development Plans. The term “Construction and Development Plans” shall mean all plans and specifications for the Golf Facilities, including elevations, plot plans, design, landscaping and other information necessary to adequately convey the design, appearance, configuration and construction of the Golf Facilities.

 

1.19. Consulting Fee. The term “Consulting Fee” shall have the meaning set forth in Section 6.6.

 

1.20. Contribution Conditions Precedent. The term “Contribution Conditions Precedent” shall have the meaning set forth in Section 3.3.

 

1.21. Contribution Date. The term “Contribution Date” shall be defined as the date on which all the Contribution Conditions Precedent have been met, including the funding of the Club Loans.

 

1.22. Controlling Interest. The term “Controlling Interest” shall have the meaning set forth in Section 16.3.

 

1.23. Deficit Capital Costs. The term “Deficit Capital Costs” shall mean the amount of a projected or actual deficit in the amount of Positive Net Cash Flow, as determined by the Management Committee, necessary to fund the required Capital Costs of the Joint Venture.

 

1.24. Deficit Loan. The term “Deficit Loan” shall have the meaning set forth in Paragraph 17.3.1.

 

1.25. Development Budget. The term “Development Budget” shall mean the budget for the construction and development of the Golf Course Improvements approved by the Management Committee and the lenders of the Club Loans.

 

1.26. Development and Construction Management Agreement. The term “Development and Construction Management Agreement” shall mean the Development and Construction Management Agreement of even date herewith by and between the Joint Venture and the Development and Construction Manager pursuant to which the Development and Construction Manager is retained to develop and construct the Club Facilities.

 

1.27. Development and Construction Manager. The term “Development and Construction Manager” shall mean AMH Golf Corp., a California corporation, which is contemporaneously herewith entering into the Development and Construction Management Agreement with the Joint Venture.

 

1.28. Equity Interest. The term “Equity Interest” shall have the meaning set forth in Section 4.4.

 

1.29. Expenditures. The term “Expenditures” shall mean the following expenses incurred and accounted for on an accrual basis, utilizing generally accepted accounting principles and any other cash outlays incurred by the Joint Venture, pursuant to the approved Development Budget

 

3


 

(until the completion of the Project and including expenses incurred subsequent to the execution date of the Agreement) and Annual Operations Budget, in connection with the acquisition, development, management, and additional construction requirements of the Club in connection with the normal course of conducting and operating the business affairs of the Club, including, but not limited to, the following:

 

1.29.1. Salaries, wages, commissions, employee benefits (including reasonable profit sharing programs) and payroll expenses of all employees employed by the Joint Venture in the direct operation of the Club;

 

1.29.2. Actual construction and development costs incurred to construct all Improvements or to acquire all Property required for the initial and ongoing development of the Club;

 

1.29.3. All management fees, incentive fees, out-of-pocket expenses, and other sums paid to (i) the Club Consultant pursuant to the terms and conditions of the Club Consulting Agreement, and (ii) the Development and Construction Manager pursuant to the terms and conditions of the Development and Construction Management Agreement;

 

1.29.4. Principal, interest, and any profit interest payments and all other amounts due on (i) the Club Loans, (ii) any subsequent refinancing of the Club Loans, or (iii) any additional loans to the Joint Venture with respect to the Club, as approved by the Management Committee and as reported on the statement of cash flows;

 

1.29.5. Accounting and computer hardware and software fees payable by the Joint Venture for accounting and computer services;

 

1.29.6. An accrued expense for insurance and property taxes each Fiscal Month in an amount or at a rate that is sufficient to pay such insurance premiums and property taxes when they become due and payable;

 

1.29.7. Insurance premiums and taxes, to the extent not covered by the accrual established therefor;

 

1.29.8. Office supplies, postage, printing, and routine operating expenses incurred in the operation of the Club;

 

1.29.9. A deposit or credit to the Capital Reserve, as permitted herein;

 

129.10. Maintenance and repairs to the Club and the Improvements, to the extent not paid from the Capital Reserve established therefor. All expenditures resulting in the acquisition or construction of equipment or other property with a useful life of one (1) year or more or which would, under generally accepted

 

4


 

accounting principles, be classified as a capital expenditure (allowing, however, an exception for materiality of FIVE HUNDRED DOLLARS ($500.00) or less for any given item), shall be paid from and charged against the Capital Reserve and shall not be separately deducted hereunder;

 

1.29.11. All legal fees incurred in the development and operation of the Club;

 

1.29.12. Marketing, advertising and promotional costs and expenses;

 

1.29.13. Principal and interest payments due on any Third-Party Equity Loan or Equity Loan;

 

1.29.14. Fees, costs, and other charges associated with financing commitments and the Club Loan;

 

1.29.15. Equipment lease and rental payments paid by the Joint Venture concerning the operation of the Club;

 

1.29.16. Maintenance of level of Working Capital required for the operation of the Club, as permitted herein;

 

1.29.17. Reasonable travel expenses of employees of the Club incurred directly in connection with the Club’s business;

 

1.29.18. Provision for uncollectible accounts receivable previously included within Gross Revenues, to the extent they remain unpaid ninety (90) days after the first billing;

 

1.29.19. The costs of utilities, including, but not limited to, gas, water, electricity and telephone in connection with the operation of the Club;

 

1.29.20. Replacement of inventories of maintenance parts and supplies, food stores and bar supplies and other inventories and supplies used in Club operations after due consideration to actual quantities on hand at the end of each fiscal period;

 

1.29.21. Replacement of broken, lost or damaged silver, chinaware, glassware, cooking utensils, and other similar, items;

 

1.29.22. The costs of entertainment at any of the restaurant or private club facilities included in the Club, including vocalists and bands;

 

1.29.23. Auditing, accounting costs, computer fees, and legal fees incurred in respect of the operation of the Club;

 

5


 

1.29.24. Any financial management and accounting fees paid to ClubCorp Financial Management Company, or other entities for similar services;

 

1.29.25. All other customary and reasonable expenses incurred in the operation of the Club and the Improvements;

 

1.29.26. Any Negative Net Cash Flow from any previous Fiscal Month, to the extent such Negative Net Cash Flow has not been previously deducted as an Expenditure.

 

Expenditures shall not include (i) depreciation, or (ii) any amounts expended from a reserve account. Any provision aforesaid resulting in a double deduction from Expenditures shall be allowed only once.

 

1.30. Financial Statements. The term “Financial Statements” shall mean a balance sheet of the Joint Venture as of the close of a fiscal period, a statement of income and expense, and a cash flow statement (including Gross Revenues, Expenditures, and Positive or Negative Net Cash Flow) for that portion of the Fiscal Year then ended, prepared in conformity with generally accepted accounting principles, applied on a basis consistent with that of the preceding period, or containing disclosures of either the effect on the financial position or the results to operations from any such change in the application of generally accepted accounting principles during the period, and certified as accurate by an executive officer of the Club Consultant.

 

1.31. Financing Lender. The term “Financing Lender” shall have the meaning set forth in Paragraph 15.1.4.

 

1.32. Fiscal Month. The term “Fiscal Month” shall mean a consecutive 28-day period, or a portion thereof, during a Fiscal Year commencing on the first day following the termination of the prior Fiscal Month, provided that the last Fiscal Month in each Fiscal Year shall end on the last day of such Fiscal Year. The first Fiscal Month of each Fiscal Year shall commence on the first day of each Fiscal Year; provided, however, that for purposes hereof, the first Fiscal Month may be a short period commencing on the execution date of the Agreement and ending on that date which would have been the ending date for such Fiscal Month if such Fiscal Month had been part of a Fiscal Year commencing on the Thursday following the last Wednesday in the December immediately preceding the execution date of the Agreement.

 

1.33. Fiscal Quarter. The term “Fiscal Quarter” shall mean a division of a Fiscal Year, as hereinafter defined. There shall be four (4) Fiscal Quarters in each Fiscal Year, the first three of which shall consist of three (3) Fiscal Months and the last of which shall consist of four (4) Fiscal Months. The first Fiscal Quarter of each Fiscal Year shall commence on the first day of each Fiscal Year and the last Fiscal Quarter shall end on the last day of the Fiscal Year.

 

1.34. Fiscal Year. The term “Fiscal Year” shall mean a period commencing on the Thursday following the last Wednesday in December during each calendar year and ending on the last Wednesday of the next following December; provided, however, that for purposes hereof, the first

 

6


 

Fiscal Year shall be a short period commencing on the execution date hereof and ending on the last Wednesday of the following December.

 

1.35. Golf Course Improvements. The term “Golf Course Improvements” shall mean the 27-hole golf course to be constructed and located on the Real Property, cart paths, practice range, teaching school, putting green, maintenance facility, parking facilities, and any related improvements placed or to be located on the Real Property.

 

1.36. Gross Receipts. The term “Gross Receipts” shall mean all receipts of the Joint Venture recognized during, on, or after the date hereof from all business conducted at, related to, or from the Real Property by the Joint Venture, and shall include, but not be limited to, all Gross Revenues, as defined in Section 1.37, plus (i) all Capital Contributions, (ii) the net proceeds received by the Joint Venturer from the Club Loans, (iii) all refinancing and additional loans approved by the Management Committee, (iv) net insurance proceeds, and (v) any other proceeds received but previously not included in Gross Revenues.

 

1.37. Gross Revenues. The term “Gross Revenues” shall mean all revenues of the Joint Venture, computed on an accrual basis, recognized during or after the first Fiscal Month beginning on or after the date hereof from all business conducted upon, related to, or from the Property by the Joint Venture, and shall include, but not be limited to, all proceeds from the sale of any portion of the Real Property, and condemnation proceeds. Gross Revenues shall also include all revenues related to or derived from the operation of the Club, computed on an accrual basis, from cash or credit transactions, recognized during or after the first Fiscal Month beginning on or after the Closing Date, and shall include, but shall not be limited to, guest fees, income derived from the investment of Gross Revenues, the amount of all sales (wholesale or retail) of food, beverages, goods, wares or merchandise on, at, or from the Property, or for services of any nature performed on, at, or from the Property, determined in accordance with generally accepted accounting principles applied on a consistent basis. Gross Revenues shall be reduced by any refunds, rebates, discounts and credits of a similar nature given, paid or returned in the;) course of obtaining such Gross Revenues. Gross Revenues shall not include applicable gross revenues, admission, cabaret, excise, sales and use taxes, or similar governmental charges collected directly from members or their guests or as a part of the sales price of any goods or services.

 

1.38. Hotel Site. The term “Hotel Site” shall mean the approximately six and one-half (6.50) acres of the Real Property, which includes the clubhouse site, plus easements for the parking area existing or to be developed for the benefit of the Hotel Site and the Club Facility, subject to reciprocal access and parking easements and other arrangements reasonably necessary to assure access and sufficient legal parking for the Hotel Site and the Club Facility to be approved by the Venturers, not to be unreasonably withheld, and as more particularly depicted on the Site Plan.

 

1.39. Improvements. The term “Improvements” shall be defined as all improvements, Golf Course Improvements structures and fixtures placed, constructed or installed, or to be placed, constructed or installed, on the Real Property for the Club.

 

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1.40. Initial Capital Contributions. The term “Initial Capital Contributions” shall mean those amounts to be contributed by AVG and Company as set forth in Section 4.1.

 

1.41. Initial Deposit. The term “Initial Deposit” shall mean the sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) to be advanced by Company on the execution date of the Agreement.

 

1.42. Institutional Lender. The term “Institutional Lender” shall mean a lender with a net worth of at least FIFTY MILLION DOLLARS ($50,000,000.00), i.e., Textron Financial Corporation, etc.

 

1.43. Intangible Personal Property. The term “Intangible Personal Property” shall be defined as all intangible personal property of any nature owned by the Joint Venture in connection with the operation of the Club, including, but not limited to, all permits, security deposits, contract rights, water rights, utility permits, logos, service marks, and the use of the name “Aliso Viejo Golf Club at Aliso Viejo” and any derivative thereof.

 

1.44. Loan Funds. The term “Loan Funds” shall mean the Club Loans funded pursuant to the Textron Commitment and the Mezzanine Loan Term Sheet to fund the cost and expense to design, construct, install and equip the Golf Course Facilities.

 

1.45. Major Policy Decision. The term “Major Policy Decision” shall mean any proposed action of the Joint Venture which would have a substantial impact on the development of the Property or the business operations of the Joint Venture, including a sale of assets, an amendment of the Agreement, approval of operating or franchise agreements, design contracts, financing agreements, construction budgets, management contract, decisions not to seek financing for operating deficits, approval of contracts in excess of one (1) year in length, approval of capital expenditures in excess of FIFTY THOUSAND DOLLARS ($50,000.00), refinancing of existing debt, in whole or in part, changes in operating concept for the Property, commencement of any legal action if the amount or issue exceeds FIFTY THOUSAND DOLLARS ($50,000.00), decisions on making Capital Contributions and decisions on removing or replacing the Managing Partner.

 

1.46. Management Committee. The term “Management Committee” shall have the meaning set forth in Section 6.1 hereof.

 

1.47. Managing Partner(s). The term “Managing Partners)” shall have the meaning set forth in Section 6.4 hereof.

 

1.48. Managing Partner’s Percentage Fee. The term “Managing Partner’s Percentage Fee” shall have the meaning set forth in Section 6.7.

 

1.49. Mezzanine Lender. The term “Mezzanine Lender” shall mean the Affiliates of the Venturers, pursuant to Section 4.3, or such other lender as may be mutually agreeable to the Venturers.

 

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1.50. Mezzanine Loan. The term “Mezzanine Loan” shall mean the loan transactions between the Joint Venture and the Mezzanine Lender, as evidenced by the Mezzanine Loan Documents.

 

1.51. Mezzanine Loan Documents. The term “Mezzanine Loan Documents” shall mean the loan documentation for the loan transaction between the Joint Venture and Mezzanine Lender approved by the Mezzanine Lender and the Venturers.

 

1.52. Negative Net Cash Flow. The term “Negative Net Cash Flow” shall mean that amount by which Expenditures exceed Gross Receipts for the period involved.

 

1.53. Percentage Interest. The term “Percentage Interest” shall have the meaning set forth in Section 5.1.

 

1.54. Personal Property. The term “Personal Property” shall mean all equipment, machinery, fixtures, furnishings, accessories, and other tangible personal property placed or installed, or to be placed or installed, on or about the Real Property and used as a part of or in connection with the operation of the Improvements and the Club.

 

1.55. Positive Net Cash Flow. The term “Positive Net Cash Flow” shall mean the amount by which Gross Receipts exceed Expenditures for the period involved.

 

1.56. Primary Loan or Primary Loans. The term “Primary Loan” or “Primary Loans” shall mean, individually or jointly, the loans to AVG by (i) Mission Viejo Company in the amount of approximately TWO MILLION TWENTY-FIVE THOUSAND DOLLARS ($2,025,000.0), and (ii) by AMH Golf Corp. and LEGAV Corporation, in the amount of ONE MILLION SIX HUNDRED THOUSAND DOLLARS ($1,600,000.00).

 

1.57. Priority Return. The term “Priority Return” shall mean a sum equal to an” annual rate of ten percent (10%) compounded monthly, cumulative to the extent not distributed, of the average daily positive balance of each Venturer’s capital account.

 

1.58. Project. The term “Project” shall be defined as the planned development to be located on the certain parcel or parcels of land near Aliso Viejo, California, as more specifically described in Exhibit A.

 

1.59. Property. The term “Property” shall be defined as (i) the Real Property, (ii) the Improvements, (in) the Golf Course Improvements, (iv) the Personal Property, (v) the lntangible Personal Property, and (vi) any other properties or assets of the Joint Venture, tangible or intangible, real or personal.

 

1.60. Real Property. The term “Real Property” shall mean those certain tracts of land near Aliso Viejo, California, as more specifically described in Exhibit A.

 

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 EX-3.6(A) 12 a2202241zex-3_6a.htm EX-3.6(A)

Exhibit 3.6(a)

 

AZ CORPORATION COMMISSION

FILED

 

JAN 29 2007

 

FILE NO L - 13004220

 

 

AMENDED AND RESTATED
ARTICLES OF ORGANIZATTON
OF
ANTHEM GOLF, LLC

 

Pursuant to A.R.S. §25-633, the undersigned states as follows:

 

A.                      The present name of the limited liability company is Anthem Golf, LLC.

 

B.                        The date of filing the initial Articles of Organization of the limited liability company was July 25, 2006 at instrument no. L-1300422-O.

 

C.                        The Articles of Organization are amended and restated in their entirety to read as follows:

 

1.                         The name of the limited liability company (the “Company”) is Anthem Golf, LLC.

 

2.                         The address of the Company’s known place of business in Arizona is 2708 West Anthem Dr., Anthem, AZ 85086 located in the County of Maricopa.

 

3.                         The statutory agent’s name and address are Corporation Service Company, 2338 W, Royal Palm Road, Suite J, Phoenix, Arizona 85021.

 

4.                         Management of the Company is reserved to the member. The name and address of the member of the Company is CCA Golf Course Holdco, LLC, a Delaware limited liability company., c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703

 

Dated: January 4, 2007

CCA GOLF COURSE HOLDCO, LLC

 

 

 

 

By:

/s/ Eric L. Affeldt

 

 

Name: Eric L. Affeldt

 

 

Tittle: President

 

[STAMP]

 

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 EX-3.6(B) 13 a2202241zex-3_6b.htm EX-3.6(B)

Exhibit 3.6(b)

 

AMENDED AND RESTATED

 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
ANTHEM GOLF, LLC

 

This Amended and Restated Limited Liability Company Operating Agreement (together with the schedules attached hereto, this “Agreement”) of Anthem Golf, LLC (the “Company”), is entered into by CCA Golf Course Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on July 25, 2006, the Company executed and filed Articles of Organization (the “Articles of Organization”) with the Arizona Corporation Commission in accordance with and pursuant to the Arizona Limited Liability Company Act, as set forth in Arizona Revised Statutes §§ 29-601 et seq., as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Operating Agreement of Anthem Golf, LLC, dated as of December 26, 2006 entered into by CCA Golf Course Holdco, LLC as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.               Name.

 

The name of the Company is Anthem Golf, LLC.

 

Section 2.               Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.               Known Place of Business.

 

The address of the known place of business of the Company in the State of Arizona is c/o Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85021.

 


 

Section 4.               Statutory Agent.

 

The name and address of the statutory agent of the Company for service of process on the Company in the State of Arizona is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85021.

 

Section 5.               Members.

 

(a)                The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

(b)               The Member may act by written consent.

 

Section 6.               Certificates; Termination.

 

The Member or an Officer shall execute, deliver and file any certificates or other documents (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any jurisdiction other than Arizona in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until the filing of Articles of Tcrmination with the Arizona Corporation Commission as provided in the Act.

 

Section 7.               Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                to own that certain parcel of real property, together with all improvements located thereon, currently known as the Anthem Golf & Country Club, in the City of Anthem, State of Arizona (the “Property”) and to operate or cause the Property to be operated;

 

(b)               to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)               to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Arizona.

 

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Section 8.               Powers.

 

The Company, and the Board of Directors and the Officers of the Company, on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.               Management.

 

(a)                Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is electcd and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)               Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Arizona. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)               Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating

 

3


 

in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                Committees of Directors.

 

(i)        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)       In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)      Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)               Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)               Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                 Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.             Reserved.

 

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Section 11.             Officers.

 

(a)                Officers. Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vole of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving arc listed on Schedule D hereto.

 

(b)               President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board arc carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)               Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, is any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and

 

5


 

disbursements in books belonging to the Company and shall deposit ail moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                Officers as Agents. The Officers, to the extent of their powers set forth m this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)               Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the Arizona Corporations Code.

 

Section 12.             Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.             Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.             Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14 are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

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Section 15.             Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.             Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.             Books and Records.

 

The Board shall keep or cause to be kept, at its known place of business, (i) complete and accurate books of account and records with respect to the Company’s business, and (ii) any other records and documents described in Section 29-607(A) of the Act. The Member and its duly authorized representatives shall have the right to examine the Company’s books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.             Reserved.

 

Section 19.             Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.             Exculpation and Indemnification.

 

(a)                To the fullest extent permitted by applicable law, neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)               To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such

 

7


 

Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)               A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in

 

8


 

the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.             Withdrawal.

 

If the Member withdraws, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the withdrawal and, immediately following such admission, the withdrawing Member shall cease to be a member of the Company.

 

Section 23.             Admission of Additional Members.

 

One or more additional Members of the Company maybe admitted to the Company with the written consent of the Member.

 

Section 24.             Dissolution.

 

(a)                The Company shall be dissolved, and its affairs shall be wound up, upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act, (ii) the entry of a decree of involuntary judicial dissolution under Section 29-785 of the Act or (iii) administrative dissolution by determination of the Arizona Corporation Commission in the manner provided in Section 29-786 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

9


 

(b)               Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)               The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) Articles of Termination have been filed with the Arizona Corporation Commission in the manner required by the Act.

 

Section 25.             Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.             Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.             Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 28.             Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member subject matter hereof, and supersedes all prior agreements and understandings, including any

 

10

 

prior limited liability company or other operating agreements, with respect to the subject matter hereof.

 

Section 29.             Reserved.

 

Section 30.             Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Arizona (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.             Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.             Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an originai of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.             Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto, and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.             Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Chapter 8 of Title 47 of the Arizona Revised Statutes (including A.R.S. § 47-8102(A)(15)) as in effect from time to time in the State of Arizona (the “UCC”), and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the UCC, such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member, “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the

 

11


 

following legend: “This certificate evidences an interest in Anthem Golf, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Chapter 8 of Title 47 of the Arizona Revised Statutes (including A.R.S. § 47-8102(A)(15)) as in effect from time to time in the State of Arizona, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CCA GOLF COURSE HOLDCO, LLC

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the A&R LLC Agreement — Anthem Golf, LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Operating Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Articles of Organization” means the Articles of Organization of the Company filed with the Arizona Corporation Commission on July 25, 2006, as amended or amended and restated from time to time.

 

“Company” means Anthem Golf, LLC, an Arizona limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

A-1


 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the Act.

 

“Member” means CCA Golf Course Holdco, LLC, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Membership
Interest

 

CCA Golf Course Holdco, LLC

 

CCA Golf Course Holdco, LLC
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$ 100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.               Eric L. Affeldt

 

2.               Eric C. Resnick

 

3.               Martin J. Newburgcr

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR ANTHEM GOLF, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-l

 

100% of Interests

 

Anthem Golf, LLC, an Arizona limited liability company (the “Company”), hereby certifies that CCA Golf Course Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER       , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in Anthem Golf, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Chapter 8 of Title 47 of the Arizona Revised Statutes (including A.R.S. § 47-8102(A)(15)) as in effect from time to time in the State of Arizona, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Arizona without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                              ] as of the date set forth below.

 

Dated:

 

 

 

 

 

Name:

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF ANTHEM GOLF, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                      (print or typewrite name of Transferee),                                  (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                             (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                     , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

(Transferor)

 

Address:

 

 

 

 

 

 

E-2


 EX-3.7(A) 14 a2202241zex-3_7a.htm EX-3.7(A)

Exhibit 3.7(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

APRIL SOUND MANAGEMENT CORP.

 

April Sound Management Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is April Sound Management Corp.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF APRIL SOUND MANAGEMENT CORP.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is April Sound Management Corp.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the April Sound Country Club, in the City of Montgomery, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of April Sound Management Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

APRIL SOUND MANAGEMENT CORP.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

APRIL SOUND MANAGEMENT CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is April Sound Management Corp.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the April Sound Country Club, in the City of Montgomery, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.7(B) 15 a2202241zex-3_7b.htm EX-3.7(B)

Exhibit 3.7(b)

 

AMENDED AND RESTATED BYLAWS
OF
APRIL SOUND MANAGEMENT CORP.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.   Annual Meetings.   If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings.   Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings.   Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments.   Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum.   Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization.   Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies.   Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record.   In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote.   The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders.   As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in Writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election.   The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings.   The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications.   The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies.   At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings.   Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings.   Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted.   Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action.   At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization.   Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors.   Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees.   The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules.   Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.   The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers.   The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities.   Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates.   Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates: Issuance of New Certificates.   The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnity it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification.   The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses.   The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims.   If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights.   The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources.   The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal.   Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses.   This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year.   The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal.   The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice.   Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees.   Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records.   Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws.   These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.8(A) 16 a2202241zex-3_8a.htm EX-3.8(A)

Exhibit 3.8(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

ASPEN GLEN GOLF CLUB MANAGEMENT COMPANY

 

Aspen Glen Golf Club Management Company (the “Corporation”), for the purposes of amending and restating its Articles of Incorporation originally filed with the Secretary of State of the State of Colorado on June 16, 1997, pursuant to Colo. Rev. Stat. § 7-110-107 of the Colorado Business Corporation Act hereby executes these Amended and Restated Articles of Incorporation and does certify as follows:

 

FIRST.  The name of the Corporation is Aspen Glen Golf Club Management Company.

 

SECOND.  The address of the Corporation’s registered office in the State of Colorado is 1560 Broadway, Suite 2090, Denver, Colorado 80202.  The name of its registered agent at such address is Corporation Service Company.  The address of the Corporation’s initial principal office is 3030 LBJ Freeway, Suite 600, Dallas, TX 75234.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Aspen Glen Club, in the City of Carbondale, State of Colorado (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any other lawful activities and to exercise such powers permitted to corporations under the Colorado Business Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 


 

FIFTH.  [Reserved].

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Colorado, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved].

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Colorado Business Corporation Act, as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Colorado at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or

 

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insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  The right to cumulate votes in the election of Directors shall not exist and is expressly prohibited with respect to shares of stock of this corporation.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

ASPEN GLEN GOLF CLUB MANAGEMENT COMPANY

 

 

 

 

 

 

By

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 EX-3.8(B) 17 a2202241zex-3_8b.htm EX-3.8(B)

Exhibit 3.8(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

ASPEN GLEN GOLF CLUB MANAGEMENT COMPANY

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.   Annual Meetings.   If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Colorado, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings.   Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings.   Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments.   Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.   Quorum.   Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization.   Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies.   Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.   Fixing Date for Determination of Stockholders of Record.   In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote.   The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders.   Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Colorado, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election.   The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to exccute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings.   The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications.   The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.   Election; Resignation; Vacancies.   At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings.   Regular meetings of the Board of Directors may be held at such places within or without the State of Colorado and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings.   Special meetings of the Board of Directors may be held at any time or place within or without the State of Colorado whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted.   Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action.   At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.   Organization.   Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors.   Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees.   The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules.   Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.   The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers.   The officers of the corporation shall have such powers and duties in the management of the corporation as may be proscribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities.   Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or causc to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.   Certificates.   Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Scction 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates.   The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification.   The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co- lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses.   The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims.   If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights.   The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources.   The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal.   Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses.   This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year.   The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal.   The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice.   Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Stockholders, Directors and Committees.   Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records.   Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws.   These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.9(A) 18 a2202241zex-3_9a.htm EX-3.9(A)

Exhibit 3.9(a)

 

RESTATED CERTIFICATE OF INCORPORATION
OF
ATHLETIC CLUB AT THE EQUITABLE CENTER, INC.

 

UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW

 

Athletic Club at the Equitable Center, Inc., for the purposes of amending and restating its Certificate of Incorporation originally filed with the Department of State of the State of New York on March 26, 1986, as heretofore amended, pursuant to Section 807 of the Business Corporation Law of the State of New York hereby executes this Restated Certificate of Incorporation and certifies as follows:

 

The Certificate of Incorporation is hereby amended to effect one or more of the amendments authorized by the New York Business Corporation Law.  The text of the Certificate of Incorporation is amended in its entirety as follows: Article ONE restates but does not amend the provisions thereof regarding the name of the corporation.  Article SECOND restates but does not amend the name and address of the registered agent.  Article THIRD amends and restates in its entirety the provisions thereof regarding the statement of corporate purpose.  Article FOURTH restates but does not amend the provisions thereof regarding authorized capital.  Article FIFTH restates but does not amend the provisions thereof regarding the Secretary of State as agent for service of process.  Article SIXTH restates but does not amend the provisions thereof regarding the manner of electing directors.  Article SEVENTH amends and restates in its entirety the provisions thereof regarding the composition of the Board of Directors.  Article EIGHTH restates but does not amend the provisions thereof regarding the adoption and amendment of By-laws.  Article NINTH amends and restates in its entirety the provisions thereof regarding the separate legal identity of the corporation.  Article TENTH amends and restates in its entirety the provisions thereof regarding the power and authority of the corporation.  Article ELEVENTH restates but does not amend the provisions thereof regarding limitations of director liability.  Article TWELFTH amends and restates in its entirety the provisions thereof regarding amendments to the Restated Certificate of Incorporation of the corporation.  Article THIRTEENTH amends and restates in its entirety the provisions thereof regarding the approval required for certain corporate activities.  Article FOURTEENTH amends and restates in its entirety the provisions thereof regarding the approval required in the event of bankruptcy or insolvency.  The amended text of the Certificate of Incorporation is hereby restated as amended to read as set forth below.

 

FIRST.  The name of the corporation is Athletic Club at the Equitable Center, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered agent in the State of New York is 80 State Street, in the City of Albany, County of Albany, State of New York 12207.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

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(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of New York, State of New York, including the sports or business club commonly known as The Athletic and Swim Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the State of New York.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  The Secretary of State is designated as agent of the corporation upon whom process against the corporation may be served.  The address to which the Secretary of State shall mail a copy of any process accepted on behalf of the corporation is:  Corporation Service Company, 80 State Street, Albany, NY 12207.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of New York, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the

 

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stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Law of the State of New York, as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation, and other provisions authorized by the laws of the State of New York at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Restated Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in

 

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furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

The Restated Certificate of Incorporation was authorized by the vote of the Board of Directors of the Corporation followed by the unanimous written consent of the holders of all of the outstanding shares of Common Stock.

 

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The undersigned hereby acknowledges that the foregoing Restated Certificate of Incorporation is her act and deed on this the 10th day of November, 2010.

 

 

 

ATHLETIC CLUB AT THE EQUITABLE
CENTER, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.9(B) 19 a2202241zex-3_9b.htm EX-3.9(B)

Exhibit 3.9(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

ATHLETIC CLUB AT THE EQUITABLE CENTER, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of New York, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.   Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.   Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote. A list of shareholders as of the record date, certified by the secretary of the corporation or other officer responsible for its preparation or by the transfer agent, if any, shall be produced at any meeting of shareholders upon the request thereat or prior thereto of any shareholder. If the right to vote at any meeting is challenged, the inspectors of election, if any, or the person presiding thereat, shall require such list of shareholders to be produced as evidence of the right of the persons challenged to vote at such meeting, and all persons who appear from such list to be shareholders entitled to vote thereat may vote at such meeting.

 

Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting

 

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forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of New York, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to

 

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adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or die certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of New York and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of New York whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal: Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if such Covered Person acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

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Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.10(A) 20 a2202241zex-3_10a.htm EX-3.10(A)

Exhibit 3.10(a)

 

 

State of Delawa
Secretary of State
Division of Corporations
Delivered 02:21 PM 08/22/2007
FILED 02:24 PM 08/22/2007
SRV 070946983 - 4411309 FILE

 

CERTIFICATE OF FORMATION
OF
LIMITED LIABILITY COMPANY

 

FIRST: The name of the limited liability company is:

AZ CLUB, LLC

 

SECOND: The address of its registered office in the State of Delaware is 2711 Centerville Rd., Suite 400, Wilmington, DE, 19808. The name of its Registered Agent at such address is Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of AZ CLUB, LLC on this 22ND day of August, 2007.

 

 

ClubCorp USA, Inc.,

 

Sole Member

 

 

 

 

 

 

 

By:

/s/ Rand Huguely

 

 

Rand Huguely, Secretary

 


 EX-3.10(B) 21 a2202241zex-3_10b.htm EX-3.10(B)

Exhibit 3.10(b)

 

AMENDED AND RESTATED

 

LIMITED LIABILITY COMPANY AGREEMENT
OF
AZ CLUB, LLC

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of AZ Club, LLC (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on August 22, 2007, the Member caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Agreement of AZ Club, LLC, dated as of November 30, 2007 entered into by ClubCorp USA, Inc. as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.                    Name.

 

The name of the limited liability company continued hereby is AZ Club, LLC.

 

Section 2.                    Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LB J Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.                    Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.                    Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.                    Members.

 

(a)                       The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)                      The Member may act by written consent.

 

Section 6.                    Certificates.

 

Rand Huguely was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.                    Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                       to own that certain parcel of real property, together with all improvements located thereon, currently known as the Seville Golf and Country Club, in the Town of Gilbert, County of Maricopa, State of Arizona (the “Property”) and to operate or cause the Property to be operated;

 

(b)                      to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Property including, without limitation, the grant of a security interest in such Property;

 

(c)                       to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)                      to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

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filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations;

 

(e)                       to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware; and

 

(f)                         to engage in any other lawful business that may be engaged in by a limited liability company organized under the Act, as such business activities may be determined by the Board of Directors from time to time.

 

Section 8.                    Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.                    Management.

 

(a)                       Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt
David Woodyard;
and Ingrid Keiser.

 

(b)                      Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                       Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

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(d)                      Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                       Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                         Committees of Directors.

 

(i)                        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                     In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                  Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)                      Compensation of Directors: Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

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(h)                      Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                          Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.              Officers.

 

(a)                       Officers. The initial Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

 

President;

Curt McClellan

 

Treasurer; and

Ingrid Keiser

 

Secretary.

 

(b)                      President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                       Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

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(d)                      Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                       Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                         Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)                      Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.              Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

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Section 12.              Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.              Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.              Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.              Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 16.              Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.              Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity.

 

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The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.              Exculpation and Indemnification.

 

(a)                       Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)                      To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                       To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)                      A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                       To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise

 

8


 

existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                         The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.              Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.              Resignation.

 

The Member may resign at any time.

 

Section 21.              Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 22.              Dissolution.

 

(a)                       The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant

 

9


 

to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)                      Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                       In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)                      The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.              Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the Member in the Company is personal property.

 

Section 24.              Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.              Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any

 

10

 

existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 26.     Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 27.     Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 28.     Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 29.     Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 30.     Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 31.     Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 32.     Effectiveness.

 

Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as of the time of the filing of the Certificate of Formation with the Office of the Delaware Secretary of State on August 22, 2007.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the A&R LLC Agreement — AZ Club, LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on August 22, 2007, as amended or amended and restated from time to time.

 

“Company” means AZ Club, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as a member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600

Dallas, TX 75234-7703

 

$100

 

100%

 

 

 

Attention:

Director of Finance and
Chief Legal Officer

 

 

 

 

 

 

B-1


 EX-3.11(A) 22 a2202241zex-3_11a.htm EX-3.11(A)

Exhibit 3.11(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

BARTON CREEK RESORT & CLUBS, INC.

 

Barton Creek Resort & Clubs, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.   The name of the Corporation is Barton Creek Resort & Clubs, Inc.

 

TWO.   The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF BARTON CREEK RESORT & CLUBS, INC.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Barton Creek Resort & Clubs, Inc.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Barton Creek Resort, in the City of Austin, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Barton Creek Resort & Clubs, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

BARTON CREEK RESORT & CLUBS, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

BARTON CREEK RESORT & CLUBS, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Barton Creek Resort & Clubs, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Barton Creek Resort, in the City of Austin, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a Director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.11(B) 23 a2202241zex-3_11b.htm EX-3.11(B)

Exhibit 3.11(b)

 

AMENDED AND RESTATED BYLAWS
OF
BARTON CREEK RESORT & CLUBS, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.   Annual Meetings.  If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings.  Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or parsons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings.  Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments.  Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum.  Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization.  Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies.  Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record.  In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote.  The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders.  As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election.  The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings.  The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications.  The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies.  At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings.  Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings.  Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted.  Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action.  At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization.  Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors.  Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees.  The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules.  Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.  The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers.  The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities.  Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates.  Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost. Stolen or Destroyed Stock Certificates; Issuance of New Certificates.  The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification.  The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses.  The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims.  If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights.  The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources.  The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal.  Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses.  This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year.  The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal.  The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice.  Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees.  Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records.  Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws.  These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.12(A) 24 a2202241zex-3_12a.htm EX-3.12(A)

Exhibit 3.12(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

BAY OAKS COUNTRY CLUB, INC.

 

Bay Oaks Country Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Bay Oaks Country Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF BAY OAKS COUNTRY CLUB, INC.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Bay Oaks Country Club, Inc.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Bay Oaks Country Club, in the City of Houston, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Bay Oaks Country Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

BAY OAKS COUNTRY CLUB, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

BAY OAKS COUNTRY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Bay Oaks Country Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Bay Oaks Country Club, in the City of Houston, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4

 


 EX-3.12(B) 25 a2202241zex-3_12b.htm EX-3.12(B)

Exhibit 3.12(b)

 

AMENDED AND RESTATED BYLAWS
OF
BAY OAKS COUNTRY CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new. bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 

 


 EX-3.13(A) 26 a2202241zex-3_13a.htm EX-3.13(A)

Exhibit 3.13(a)

 

RECEIVED
STATE OF TENNESSEE

 

2006 DEC 27 AM 11:07

 

RILEY DARNELL
SECRETARY OF STATE

 

ARTICLES OF AMENDMENT
TO ARTICLES OF ORGANIZATION
(LIMITED LIABILITY COMPANY)

 

LLC Control Number: 0502201

 

Pursuant to the provisions of §48-209-104 of the Tennessee Limited Liability Company Act, the undersigned adopts the following Articles of Amendment to its Articles of Organization, and pursuant to the provisions of § 48-249-1002 of the Tennessee Revised Limited Liability Company Act, this LLC elects to be governed by the Tennessee Revised Limited Liability Company Act:

 

1.                         The name of the limited liability company (the “LLC”) is “Bluegrass Club, LLC”.

 

2.                         The text of the amendment adopted is:

 

Paragraph 4 of the Articles of Organization is hereby amended by deleting the provisions thereof in their entirety and substituting, in lieu thereof, the following as Paragraph 4:

 

“4. The Limited Liability Company will be director-managed.”

 

3.                         The date of the amendment’s adoption is December 14, 2006.

 

4.                         This amendment was duly adopted by the sole member of this LLC.

 

5.                         This LLC elects to be governed by the Tennessee Revised Limited Liability Company Act.

 

6.                         This amendment is to be effective when filed by the Secretary of State.

 

 

 

/s/ Thomas T. Henslee

 

 

Signature

 

 

 

 

 

 

Secretary

 

Thomas T. Henslee

Signer’s Capacity

 

Name of Signer (typed or printed)

 


 

[SEAL]
Corporate Filings
312 Eighth Avenue North
6th Floor, William R. Snodgrass Tower
Nashville, TN 37243

[Illegible]

ARTICLES OF
ORGANIZATION
(LIMITED LIABILITY COMPANY)

For Office Use Only

[Illegible]

 

The undersigned acting as organizers) of a Limited Liability Company under the provisions of the Tennessee Limited Liability Company Act §48-205-101, adopts the following Articles of Organization.

 

1.               The name of the Limited Liability Company is:

 

Bluegrass Club, LLC

 

(NOTE: Pursuant to the provisions of §48-207-101, each limited Liability Company name must contain the words “Limited Liability Company” or the abbreviation “LLC” or “LLC.”)

 

2.               The name and complete address of the Limited Liability Company’s initial registered agent and office located in the state of Tennessee is:

 

Corporation Service Company

 

 

 

 

 

(Name)

 

 

 

 

 

 

 

 

 

 

 

2908 Poston Avenue

 

Nashville

 

TN 37203

 

(Street Address)

 

(City)

 

(State/Zip Code)

 

 

 

 

 

 

 

Sumner

 

 

 

 

 

(County)

 

 

 

 

 

 

3.               List the name and complete address of each organizer of this Limited Liability Company.

 

Douglas T. Howe, 3030 LBJ Freeway, Suite 600, Dallas, TX 75234

(Name)

 

(Include: Street Address, City, State and Zip Code)

 

 

 

Jack T. Lupton, 3030 LBJ Freeway, Suite 600, Dallas, TX 75234

(Name)

 

(Street Address, City, State and Zip Code)

 

 

 

Thomas J. Tripoli, 3001 Countryside Blvd., Clearwater, FL 33761

(Name)

 

(Street Address, City, State and Zip Code)

 

4.               The Limited Liability Company will be: (NOTE: PLEASE MARK APPLICABLE BOX)

x Board Managed o Member Managed

 

5.               Number of members at the date of filing one.

 

6.               If the document is not to be effective upon filing by the Secretary of State, the delayed effective date and time is:

Date                              , _____________, Time                                (Not to exceed 90 days.)

 

7.               The complete address of the Limited Liability Company’s principal executive office is:

 

3030 LBJ Freeway, Suite 600, Dallas, Texas 75234

(Street Address)

 

(City)

 

(State/County/Zip Code)

 

 

8.               Period of Duration:

 

9.               Other Provisions:

 

10.         THIS COMPANY IS A NON-PROFIT LIMITED LIABILITY COMPANY (Check if applicable) o

 

August 12, 2005

 

/s/ Thomas T. Henslee

Signature Date

 

Signature (manager or member authorized to sign by the Limited Liability Company)

 

 

 

Secretary

 

Thomas T. Henslee

Signer’s Capacity

 

Name (typed or printed)

 

SS-4249 (Rev. 9/04)

 

Filing Fee: $50 per member (minimum fee = $300, maximum fee = $3,000)

 

RDA 2458

 

 


 EX-3.13(B) 27 a2202241zex-3_13b.htm EX-3.13(B)

Exhibit 3.13(b)

 

SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
BLUEGRASS CLUB, LLC

 

This Second Amended and Restated Limited Liability Company Operating Agreement (together with the schedules attached hereto, this “Agreement”) of Bluegrass Club, LLC (the “Company”), is entered into by CCA Mezzanine Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on September 12, 2005, Articles of Organization (the “Original Articles of Organization”) were filed with the Secretary of State of the State of Tennessee in accordance with and pursuant to the Tennessee Limited Liability Company Act (T.C.A. Section 48-201-102 et seq.), as amended from time to time (the “Original Act”).

 

WHEREAS, the Company is currently governed by that certain First Amended and Restated Limited Liability Company Operating Agreement of Bluegrass Club, LLC, dated as of February 20, 2007 entered into by CCA Mezzanine Holdco, LLC, as the sole member (the “Existing Agreement”).

 

WHEREAS, the Company has voluntarily elected to be governed by the Tennessee Revised Limited Liability Company Act (T.C.A. Section 48-249-101 et seq.), as amended from time to time (the “Act”), by amending the Original Articles of Organization by filing Articles of Amendment with the Tennessee Secretary of State (together with the Original Articles of Organization, the “Articles of Organization”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.        Name.

 

The name of the Company is Bluegrass Club, LLC.

 

Section 2.        Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600, Dallas, TX 75234-7703 or such other location as may hereafter be determined by the Member.

 


 

Section 3.        Registered Office.

 

The street address of the registered office of the Company in the State of Tennessee is c/o Corporation Service Company, 1908 Poston Avenue, Nashville, Davidson County, Tennessee, 78701.

 

Section 4.        Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Tennessee is Corporation Service Company, 1908 Poston Avenue, Nashville, Davidson County, Tennessee, 78701.

 

Section 5.        Members.

 

(a)         The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

(b)         The Member may take action on any matter that is to be voted on, consented to or approved by the Member by taking such action without a meeting, without prior notice and without a vote, if consent or consents in writing, setting forth the action so taken is signed by the Member (or, if more than one Member, by the Members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote on the matter were present and voted) as provided in the Act.

 

Section 6.        Certificates.

 

The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Articles of Organization as provided in the Act.

 

Section 7.        Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)         to manage, lease and/or operate one or more sports or business clubs, in the City of Hendersonville, State of Tennessee, including the sports or business club commonly known as the Bluegrass Yacht & Country Club (the “Business”);

 

(b)         to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

(c)         to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

2


 

(d)         to engage in any activities necessary to authorize, execute and deliver any other agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)         to engage in such lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Tennessee.

 

Section 8.        Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.        Management.

 

(a)         Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)         Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)         Meetings of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Tennessee. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)         Quorum; Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the

 

3


 

Board or of any committee thereof may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken is signed by all members of the Board or committee, as the case may be, entitled to vote on the matter as provided in the Act, and the written consent or consents are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)         Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)          Committees of Directors.

 

(i)                       The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                    In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                 Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)         Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)         Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and, any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

4


 

(i)          Directors as Agents. To the extent of their powers set forth in this Agreement, the actions of the Directors as a group causes the Directors to constitute an agent of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Except as provided in the Act, this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

(j)          Reserved.

 

Section 10.      Reserved.

 

Section 11.      Officers.

 

(a)         Officers. The Officers of the Company, including their successors, shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated, appointed and elected by the Board, and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)         President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)         Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)         Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing

 

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committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)         Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)          Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and, the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)         Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall be held to the standards of conduct as prescribed in Section 48- 249-403(i) and Section 48-249-403(j), respectively, of the Act.

 

Section 12.      Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.      Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

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Section 14.      Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.      Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.      Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Member on account of its interest in the Company if such distribution would violate the Act or any other applicable law or any Basic Document.

 

Section 17.      Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board may otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.      Reserved.

 

Section 19.      Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

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Section 20.      Exculpation and Indemnification.

 

(a)         Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)         To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)         To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)         A Covered Person shall be folly protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)         To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

8


 

(f)          The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.      Assignments.

 

The Member may assign in whole or in part its membership interest in the Company. If the Member transfers all of its membership interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.      Withdrawal.

 

If the Member withdraws, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the withdrawal and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.      Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.      Dissolution.

 

(a)         The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of an order of a court under Section 48-249-616 or 48-249-617 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its membership interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the

 

9


 

withdrawal of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)         Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)         In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 48-249-620 of the Act.

 

(d)         The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) Articles of Termination shall have been filed with the Tennessee Secretary of State in the manner required by the Act.

 

Section 25.      Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.      Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

10

 

Section 27.      Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 28.      Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.      Reserved.

 

Section 30.      Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Tennessee (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.      Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.      Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.      Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.      Certification of Membership Interests.

 

The Company hereby irrevocably elects that all membership interests in the Company shall constitute and shall remain a “Security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Tennessee, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of

 

11


 

Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Tennessee (T.C.A. § 8101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of membership interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more membership interests in the Company. Each Certificate shall bear the following legend:

 

This certificate evidences an interest in Bluegrass Club, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Tennessee, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the membership interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the membership interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

CCA MEZZANINE HOLDCO, LLC

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

 Ingrid Keiser

 

 

Title:

 Secretary

 

Signature Page to Second A&R LLC Agreement — Bluegrass Club, LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means Second Amended and Restated Limited Liability Company Operating Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Articles of Organization” has the meaning set forth in the preamble to this Agreement.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Company” means Bluegrass Club, LLC, a Tennessee limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

A-1


 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as directors of the Company.

 

“Member” means CCA Mezzanine Holdco, LLC, as the member of the Company, and includes any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a)(i).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

CCA Mezzanine Loan Holdco, LLC

 

CCA Mezzanine Holdco, LLC
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.         Eric L. Affeldt

2.         Eric C. Resnick

3.         Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

 

 

Eric L. Affeldt

 

President

 

 

 

 

 

Curt McClellan

 

Treasurer

 

 

 

 

 

Ingrid Keiser

 

Secretary

 

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR BLUEGRASS CLUB, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-1

 

100% of Interests

 

Bluegrass Club, LLC, a Tennessee limited liability company (the “Company”), hereby certifies that CCA Mezzanine Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF DECEMBER     , 2006, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in Bluegrass Club, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Tennessee, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Tennessee without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                        ] as of the date set forth below.

 

Dated:

 

 

 

 

 

 

Name:

 

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF BLUEGRASS CLUB, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                              (print or typewrite name of Transferee),                              (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                    (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                             , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature

 

 

 

 

 

(Transferor)

 

 

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

E-2


 EX-3.14(A) 28 a2202241zex-3_14a.htm EX-3.14(A)

Exhibit 3.14(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

BROOKHAVEN COUNTRY CLUB, INC.

 

Brookhaven Country Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Brookhaven Country Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF BROOKHAVEN COUNTRY CLUB, INC.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Brookhaven Country Club, Inc.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Brookhaven Country Club, in the City of Dallas, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Brookhaven Country Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

BROOKHAVEN COUNTRY CLUB, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

BROOKHAVEN COUNTRY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Brookhaven Country Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Brookhaven Country Club, in the City of Dallas, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one-hundred thousand (100,000) shares of Common Stock, $0.01 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

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 EX-3.14(B) 29 a2202241zex-3_14b.htm EX-3.14(B)

Exhibit 3.14(b)

 

AMENDED AND RESTATED BYLAWS
OF
BROOKHAVEN COUNTRY CLUB, INC.

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.15(A) 30 a2202241zex-3_15a.htm EX-3.15(A)

Exhibit 3.15(a)

 

CERTIFICATE OF

 

THIRD AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

CANYON GATE AT LAS VEGAS, INC.

 

The undersigned officer of Canyon Gate at Las Vegas, Inc., a Nevada corporation, for the purposes of amending and restating, pursuant to Nevada Revised Statutes 78.390 and 78.403, the Articles of Incorporation originally filed with the Nevada Secretary of State on July 1, 1992, hereby executes these Third Amended and Restated Articles of Incorporation and certifies that such Third Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010, and were adopted by the sole stockholder of the Corporation on November 9, 2010, as follows:

 

1.                                       Name of Corporation:  The name of the corporation is Canyon Gate at Las Vegas, Inc. (the “Corporation”).

 

2.                                       Authorized Capital Stock:  The total authorized capital stock of the Corporation shall consist of one thousand (1,000) shares of common stock having a par value of one dollar ($1.00) per share.

 

3.                                       Purpose:  The purpose of the Corporation shall be to engage in any lawful activity, including, without limitation, the following:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Canyon Gate Country Club, in the City of Las Vegas, State of Nevada (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property; and

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents

 

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necessary or advisable to comply with any applicable laws, statutes, rules and regulations.

 

4.                                       Management of the Corporation:  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.  The Board of Directors shall be elected in such manner as shall be provided in the Bylaws of the Corporation (as amended from time to time, the “Bylaws”).  The number of directors may be changed from time to time in such manner as shall be provided in the Bylaws, provided that the number of directors shall not be less than one (1).

 

5.                                       Additional Provisions:

 

(a)                                  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

(b)                                 The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

*                                         *                                         *

 

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IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed this Certificate of Third Amended and Restated Articles of Incorporation on this 10th day of November, 2010.

 

 

 

CANYON GATE AT LAS VEGAS, INC.

 

 

 

 

 

 

By:

/s/ Eric Affeldt

 

 

Eric Affeldt, Secretary

 

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 EX-3.15(B) 31 a2202241zex-3_15b.htm EX-3.15(B)

Exhibit 3.15(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CANYON GATE AT LAS VEGAS, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Nevada, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting, signed in accordance with applicable law, shall be given that shall state the place, if any, date and hour of the meeting, the means of electronic communications, if any, by which stockholders and proxies shall be deemed to be present in person and vote, and the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.   Quorum. Except as otherwise provided by law; the articles of incorporation, as amended, or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but, except as otherwise provided in this section 1.7, no such proxy shall be voted or acted upon after six months from its creation, unless the proxy provides for a longer period which may not exceed seven years from its creation. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, such as the appointment as proxy of a pledgee, a person who purchased or agreed to purchase the shares, a creditor of the corporation who extended it credit under terms requiring the appointment, an employee of the corporation whose employment contract requires the appointment or a party to a voting agreement created pursuant to subsection 3 of Nevada Revised Statutes 78.365. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is

 

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present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the Board of Directors may fix a new record date for the adjourned meeting. The Board of Directors must fix a new record date if the meeting is adjourned to a date more than 60 days later than the date set for the original meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the

 

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examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Nevada, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. To the extent permitted by applicable law, the corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the

 

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number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, to the extent permitted by applicable law, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Nevada and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Nevada whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Unless the Board of Director appoints alternate members, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. All officers must be natural persons. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

 

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ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6 1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person Notwithstanding the preceding sentence, except as otherwise provided m Section 6 3 to the extent permitted by applicable law, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders) as Lender and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding m advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may, to the extent permitted by applicable law, file suit to recover the unpaid amount of such claim and, it successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusively of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of he meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

14


 EX-3.16(A) 32 a2202241zex-3_16a.htm EX-3.16(A)

Exhibit 3.16(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

CAPITAL CITY CLUB OF MONTGOMERY, INC.

 

Capital City Club of Montgomery, Inc. (the “Corporation”), for the purposes of amending and restating the Articles of Incorporation originally filed under the name City Club of Montgomery, Inc. with the Judge of Probate of Montgomery County, Alabama on March 7, 1977, pursuant to the Alabama Business Corporation Act, Section 10-2B-10.01, et seq. of the Code of Alabama, 1975, as amended, hereby executes and delivers these articles of restatement setting forth the Amended and Restated Articles of Incorporation of the Corporation as follows:

 

FIRST.  The name of the Corporation is Capital City Club of Montgomery, Inc.

 

SECOND.  The street address of the Corporation’s current registered office in the State of Alabama is 150 South Perry Street, Montgomery, Alabama 36104.  The name of its current registered agent at such office is CSC—Lawyers Incorporating Service Incorporated.

 

THIRD.  The Corporation has been organized for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Montgomery, State of Alabama, including the sports or business club commonly known as Capital City Club — Montgomery (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business and any assets thereof, including, without limitation, the grant of a security interest in or mortgage on any and all assets of such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Alabama Business Corporation Act and to engage in the

 


 

transaction of any or all lawful business for which corporations may be incorporated under the Alabama Business Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be one or more, as specified in or fixed in accordance with the Bylaws of the Corporation.  The Bylaws of the Corporation may establish a variable range for the size of the Board of Directors by fixing a minimum and maximum number of directors.  The number of directors may be fixed or changed from time to time, within the minimum and the maximum, by the Board of Directors.

 

(c)                                  The Board of Directors of the Corporation may fill any vacancy occurring on the Board of Directors of the Corporation, including, without limitation, any vacancy resulting from an increase in the number of directors of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Alabama, the Board of Directors of the Corporation is expressly authorized to amend and repeal the Bylaws of the Corporation to the fullest extent permitted by the Alabama Business Corporation Act, subject to the power of the shareholders of the Corporation to amend or repeal any Bylaw whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for money damages for any action taken, or any failure to take any action, as a director, except for (i) the amount of a financial benefit received by such director to which

 

2


 

such director is not entitled; (ii) an intentional infliction of harm on the Corporation or its shareholders by such director; (iii) a violation of Section 10-2B-8.33 of the Alabama Business Corporation Act or any successor provision to such section; (iv) an intentional violation of criminal law by such director; or (v) a breach of such director’s duty of loyalty to the Corporation or its shareholders. If the Alabama Business Corporation Act is hereafter amended, or any successor statute thereto is hereafter adopted or amended, to authorize the elimination of or the further limitation of the liability of a director of a corporation, then the liability of a director of the Corporation, in addition to the limitations on liability provided herein, shall be limited to the fullest extent permitted by the Alabama Business Corporation Act, as amended, or any successor statute thereto, as adopted or amended. The limitation on liability of directors of the Corporation contained herein shall apply to liabilities arising out of acts or omissions occurring subsequent to the adoption of this Article ELEVENTH and, except to the extent prohibited by law, to liabilities arising out of acts or omissions occurring prior to the adoption of this Article ELEVENTH.  Any repeal or modification of this provision by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability of a director of the Corporation existing at the time of such repeal or modification.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Alabama at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  No holder of any share or shares of any class of stock of the Corporation shall have any preemptive right to purchase or subscribe for shares of any class of capital stock of the Corporation now or hereafter authorized, including treasury shares, or for any securities convertible into or carrying any optional rights to purchase or subscribe for any shares of any class of capital stock of the Corporation now or hereafter authorized.

 

3


 

The Corporation has caused the foregoing Amended and Restated Articles of Incorporation to be executed by its duly authorized officer on this the 10th day of November, 2010.  These Amended and Restated Articles of Incorporation shall be effective upon filing.

 

 

Capital City Club of Montgomery, Inc.

 

 

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

 

 

 

This document prepared by:

 

 

 

Perkins Coie LLP

 

1201 Third Avenue, Suite 4800

 

Seattle WA 98101-3099

 

 


 EX-3.16(B) 33 a2202241zex-3_16b.htm EX-3.16(B)

Exhibit 3.16(b)

 

AMENDED AND RESTATED BYLAWS

 

OF

 

CAPITAL CITY CLUB OF MONTGOMERY, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Alabama, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors or, to the extent required by the Alabama Business Corporation Act, the holders of at least 10 percent of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting, in each case such special meeting to be called in the manner specified in the Alabama Business Corporation Act and these bylaws, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given in writing and shall state the date, time and place of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation. Notwithstanding the provisions of this Section 1.3 or any provisions of the Alabama Business Corporation Act, the stock or bonded indebtedness of the corporation shall not be increased at a meeting unless notice of such meeting shall have been given as may be required by Section 234 of the Constitution of Alabama as the same may be amended from time to time.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at a different date, time or place, and notice need not be given of any such adjourned meeting if the new date, time or place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the

 


 

adjournment is for more than thirty (30) days, or if after the adjournment a new record date for the adjourned meeting is or must be fixed in the manner specified by the Alabama Business Corporation Act, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after 11 months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a majority of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law, including, without limitation, the Constitution of Alabama, or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

2


 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the Board of Directors fixes a new record date for the adjourned meeting, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. After a record date is fixed for a meeting, the corporation shall prepare an alphabetical list of the names of all its shareholders who are entitled to notice of a shareholders’ meeting. The list shall be arranged by voting group (and within each voting group by class or series of shares) and show the address of and number of shares held by each shareholder. The shareholders’ list shall be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the corporation’s principal office or, if the corporation’s principal office is located outside the State of Alabama, at its registered office. A shareholder, his or her agent, or attorney is entitled on written demand to inspect and, for a proper purpose, to copy the list, during regular business hours and at his or her expense, during the period it is available for inspection. The corporation shall make the shareholders’ list available at the meeting, and any shareholder, his or her agent, or attorney is entitled to inspect the list at any time during the meeting or any adjournment. Refusal or failure to prepare or make available the shareholders’ list shall not affect the validity of action taken at the meeting. The stock transfer records of the corporation shall be prima facie evidence as to

 

3


 

who are the shareholders entitled to examine the shareholders’ list or transfer records or to vote at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. Except as provided in the articles of incorporation of the Corporation, action required or permitted by the Constitution of Alabama or the Alabama Business Corporation Act to be taken at a shareholders’ meeting may be taken without a meeting if the action is taken by all shareholders entitled to vote on the action. The action shall be evidenced by one or more written consents describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered to the corporation for inclusion in the minutes or filing with the corporate records.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate and which are not inconsistent with applicable law. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting and which are not inconsistent with applicable law. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to

 

4


 

shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual shareholders’ meeting following his or her election or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a majority of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Alabama and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Alabama whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson

 

6


 

chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Any action required or permitted by the Alabama Business Corporation Act to be taken at a meeting of the Board of Directors or a committee thereof may be taken without a meeting if the action is taken by all members of the Board of Directors or of the committee, as the case may be. The action shall be evidenced by one or more written consents describing the action taken, signed by each director or committee member, as the case may be, and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this Section 2.8 is effective when the last director or committee member, as the case may be, signs the consent, unless the consent specifies a different effective date. A consent signed under this Section 2.8 has the effect of a meeting vote and may be described as such in any document.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee may have one or more members, who serve at the pleasure of the Board of Directors. The creation of a committee and appointment of members to it shall be approved by the greater of (i) a majority of all the directors in office when the action is taken or (ii) the number of directors required by the articles of incorporation of the corporation or these bylaws to take such action. The provisions of the articles of incorporation of the corporation and these bylaws which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors, shall apply to committees and their members as well; provided, however, that a quorum of a committee of the Board of Directors shall consist of a majority of the members of the committee. To the extent specified by the Board of Directors or in the articles of incorporation of the corporation or these bylaws, each committee may exercise the authority of the Board of Directors. A committee may not however: (1) authorize distributions; (2) approve or propose to shareholders action that the Alabama Business Corporation Act requires be approved by shareholders; (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the articles of incorporation of the corporation; (5) adopt, amend, or repeal bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to formula or method prescribed by the Board of Directors; or (8) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except that the Board of Directors may authorize a committee (or a senior executive officer of the corporation) to do so within limits specifically prescribed by the Board of Directors. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee created by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

8


 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Certificates representing shares of the corporation shall be in such form as shall be determined by the Board of Directors and shall be in accordance with the Alabama Business Corporation Act. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law or the articles of incorporation pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses permitted under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall, to the fullest extent not prohibited by applicable law, be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall, to the fullest extent not prohibited by applicable law, have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

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Section 6.6.   Survival of Right; Amendment or Repeal. Any right to indemnification or advancement of expenses provided by or granted pursuant to this Article VI shall continue as to a person who has ceased to be a director or officer, employee or agent or to serve as a director, officer, employee or agent of such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity and shall inure to the benefit of the heirs, executors, administrators and personal representatives of such a person. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. A shareholder may waive any notice required by the Constitution of Alabama, the Alabama Business Corporation Act, the articles of incorporation of the corporation, or these bylaws, including, without limitation, any required notice of the time, place or purpose of any annual or special meeting of shareholders of the corporation, before or after the date and time stated in the notice, in the manner provided for making such waiver in the Alabama Business Corporation Act. Unless another method is specified by the Alabama Business Corporation Act, the waiver shall be in writing, be signed by the shareholder entitled to the notice, and be delivered to the corporation for inclusion in the minutes or filing with the corporate records. A shareholder’s attendance at a meeting shall constitute a waiver of objections (i) to lack of or defective notice of a shareholders’ meeting unless such shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting or (ii) to consideration of particular matters at the meeting that are not within the purpose or purposes described in the meeting notice, unless such shareholder objects to considering the matter before action is taken on the matter. A director or member of a committee may waive any notice required by the Alabama Business Corporation Act, the articles of incorporation of the corporation, or these bylaws before or after the date and time stated in the notice. Except as provided by the following sentence of this Section 7.4, the waiver must be in writing, signed by the director or member of a committee entitled to notice, and filed with the minutes or corporate records. A director’s or committee member’s attendance at or participation in a meeting: (i) waives objection to lack of any required notice to such director or committee member or defective notice of the meeting unless the director or committee member, as the case may be, at the beginning of the meeting (or promptly upon his or her arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to any action taken at the meeting; and (ii) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, if required, unless the director or committee member, as the case may be, objects to considering the matter before action is taken on the matter.

 

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Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws.

 

(A)     Amendment by Board of Directors or Shareholders. (i) The Board of Directors may amend or repeal these bylaws unless:

 

(a)         the articles of incorporation or the Alabama Business Corporation Act reserves this power exclusively to the shareholders in whole or in part; or

 

(b)        the shareholders in amending or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw.

 

(ii)      The shareholders may amend or repeal the bylaws even though the bylaws may also be amended or repealed by the Board of Directors.

 

(B)     Bylaw Increasing Quorum or Voting Requirement for Shareholders. (i) If authorized by the articles of incorporation of the corporation, the shareholders may adopt or amend a bylaw that fixes a greater quorum or voting requirement for shareholders (or voting groups of shareholders) than is required by the Alabama Business Corporation Act. The adoption or amendment of a bylaw that adds, changes, or deletes a greater quorum or voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater.

 

(ii)      A bylaw that fixes a greater quorum or voting requirement for shareholders under Section 7.6(B)(i) may not be adopted, amended, or repealed by the Board of Directors.

 

(C)     Bylaw Increasing Quorum or Voting Requirement for Directors. (i) A bylaw that fixes a greater quorum or voting requirement for the Board of Directors may be amended or repealed as follows:

 

(a)         if originally adopted by the shareholders, only by the shareholders;

 

(b)        if originally adopted by the Board of Directors, either by the shareholders or by the Board of Directors.

 

(ii)      A bylaw adopted or amended by the shareholders that fixes a greater quorum or voting requirement for the Board of Directors may provide that it may be

 

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amended or repealed only by a specified vote of either the shareholders or the Board of Directors.

 

(iii)     Action by the Board of Directors under Section 7.6(C)(i)(b) to adopt or amend a bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater.

 

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 EX-3.17(A) 34 a2202241zex-3_17a.htm EX-3.17(A)

Exhibit 3.17(a)

 

ARTICLES OF RESTATEMENT

OF

CAPITAL CITY CLUB OF RALEIGH, INC.

 

Pursuant to Section 55-10-07 of the General Statues of North Carolina, the undersigned corporation hereby submits these Articles of Restatement for the purpose of integrating into one document its original articles of incorporation and all amendments thereto and also for the purpose of amending its articles of incorporation:

 

1.     The name of the corporation is Capital City Club of Raleigh, Inc. (the “Corporation”).

 

2.     Attached hereto as Exhibit A are the Amended and Restated Articles of Incorporation, which contain amendments to the Articles of Incorporation requiring shareholder approval.

 

3.     The Amended and Restated Articles of Incorporation of the Corporation were adopted by its shareholders on the 9th day of November, 2010, in the manner prescribed by the North Carolina Business Corporation Act.

 

4.     The Amended and Restated Articles of Incorporation do not provide for any exchange, reclassification, or cancellation of issued shares.

 

5.     The Amended and Restated Articles of Incorporation shall be effective upon filing with the North Carolina Secretary of State.

 

Dated the 10th day of November, 2010.

 

 

 

CAPITAL CITY CLUB OF RALEIGH, INC.

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Name: Ingrid Keiser

 

 

 

Title: Secretary

 

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EXHIBIT A

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

CAPITAL CITY CLUB OF RALEIGH, INC.

 

The Corporation’s Articles of Incorporation are amended and restated in their entirety as follows:

 

FIRST.  The name of the corporation is Capital City Club of Raleigh, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office is 327 Hillsborough Street, Raleigh, North Carolina, 27603-1725, Wake County.  The name of its registered agent at such address is Corporation Services Company.  The address of the Corporation’s principal office is 3030 LBJ Freeway, Dallas, TX 75234, Dallas County.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)           to manage, lease and/or operate one or more sports or business clubs, in the City of Raleigh, State of North Carolina, including the sports or business club commonly known as Capital City Club — Raleigh / Cardinal Club (the “Business”);

 

(b)           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)           to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)           to engage in any lawful activities and to exercise such powers permitted to corporations under the North Carolina Business Corporation.

 

A-1


 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved.]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)           The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)           The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of North Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to applicable law and the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the North Carolina Business Corporation Act, as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Articles of Incorporation, and other provisions authorized by the laws of the State of North Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

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THIRTEENTH.  [Reserved.]

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  Action required to be taken at a meeting of shareholders may be taken without a meeting and without any prior notice by shareholders having not less than the minimum number of votes that would be necessary to take the action at a meeting at which all shareholders entitled to vote were present and voted.

 

SIXTEENTH.  The Corporation may conduct any transaction or transactions by electronic means, and this provision shall constitute the agreement by the Corporation, its shareholders and directors to the conduct of transactions by electronic means.

 

A-3


 EX-3.17(B) 35 a2202241zex-3_17b.htm EX-3.17(B)

Exhibit 3.17(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CAPITAL CITY CLUB OF RALEIGH, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of North Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, or within thirty (30) days after the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose or purposes for which it is to be held. The written demand shall cease to be effective on the sixty-first day after the date thereof unless prior to such day the corporation has received effective written requests from shareholders sufficient to call the special meeting. Special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are

 


 

announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares belonging to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after eleven (11) months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations

 

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of any share exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, not later than two (2) days after notice is given for every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting not later than two (2) days after notice is given for the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal

 

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place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed (prior to the 61st day after which the first shareholder signs a consent) by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of North Carolina, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given within ten (10) days after action was taken to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting as of the record date for such action as provided in Section 1.8 above.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information

 

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as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies and representatives or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of North Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of North Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person, but no individual may act in more than one capacity where the action of two officers is required. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co- lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any written waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.18(A) 36 a2202241zex-3_18a.htm EX-3.18(A)

Exhibit 3.18(a)

 

 

CERTIFICATE OF FORMATION

State of Delaware
 Secretary of State
 Division of Corporations
Delivered 01:55 PM 12/04/2006
FILED 01:25 PM 12/04/2006
SRV 061102826 - 4260903 FILE

 

 

 

 

OF

 

 

 

 

 

CCA GOLF COURSE HOLDCO, LLC

 

 

This Certificate of Formation of CCA Golf Course Holdco, LLC (the “LLC”), dated as of December 4, 2006, is being duly executed and filed by Kurt J. Neumann, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.).

 

FIRST. The name of the limited liability company formed hereby is CCA Golf Course Holdco, LLC.

 

SECOND. The address of the registered office of the LLC in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

THIRD. The name and address of the registered agent for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first above written.

 

 

 

 

 

/s/ Kurt J. Neumann

 

 

 

Name: Kurt J. Neumann
Authorized Person

 


 EX-3.18(B) 37 a2202241zex-3_18b.htm EX-3.18(B)

Exhibit 3.18(b)

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

CCA GOLF COURSE HOLDCO, LLC

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of CCA Golf Course Holdco, LLC (the “Company”), is entered into by ClubCorp Mortgage Borrower, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

On December 4, 2006, Kurt J. Neumann filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Agreement of CCA Golf Course Holdco, LLC, dated as of December 26, 2006 entered into by ClubCorp Mortgage Borrower, LLC as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1. Name.

 

The name of the limited liability company continued hereby is CCA Golf Course Holdco, LLC.

 

Section 2. Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance, or such other location as may hereafter be determined by the Member.

 

Section 3. Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4. Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5. Members.

 

(a) The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b) The Member may act by written consent.

 

Section 6. Certificates.

 

Kurt J. Neumann was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7. Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a) to own interests in and act as a member or partner (if applicable) of each of the entities identified on the list set forth on Schedule F hereto (such interests are collectively referred to herein as the “Property”):

 

(b) to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c) to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d) to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

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filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e) to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8. Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9. Management.

 

(a) Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b) Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c) Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

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or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e) Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f) Committees of Directors.

 

(i)        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)       In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)      Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g) Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h) Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i) Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions

 

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of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10. Reserved.

 

Section 11. Officers.

 

(a) Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b) President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c) Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d) Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in

 

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order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e) Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f) Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g) Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12. Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13. Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14. Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement.

 

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The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15. Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16. Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17. Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18. Reserved.

 

Section 19. Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20. Exculpation and Indemnification.

 

(a) Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim

 

7


 

incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c) To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f) The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

8


 

Section 21. Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22. Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23. Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24. Dissolution.

 

(a) The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant

 

9


 

to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b) Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d) The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25. Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26. Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27. Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any

 

10


 

existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 28. Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29. Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30. Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31. Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32. Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33. Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34. Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National

 

11


 

Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non- waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in CCA Golf Course Holdco, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

Section 35. Tax Status.

 

The Company is intended to be a disregarded entity for United States federal tax purposes.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

 

MEMBER:

 

 

 

 

 

CLUBCORP MORTGAGE BORROWER, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Name: Ingrid Keiser

Title: Secretary

 

 

Signature Page to the A&R LLC Agreement — CCA Golf Course Holdco LLC

 


 

SCHEDULE A

 

Definitions

 

A. Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on December 4, 2006, as amended or amended and restated from time to time.

 

“Company” means CCA Golf Course Holdco, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp Mortgage Borrower, LLC, as the member of the Company and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B. Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2

 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

ClubCorp Mortgage Borrower, LLC

 

c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.                          Eric L. Affeldt

 

2.                          Eric C. Resnick

 

3.                          Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CCA GOLF COURSE HOLDCO, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number:

% of Interests

 

CCA Golf Course Holdco, LLC, a Delaware limited liability company (the “Company”), hereby certifies that                           (the “Holder”) is the registered owner of                            % of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER           , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in CCA Golf Course Holdco, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by                      as of the date set forth below.

 

Dated:

 

 

 

 

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF CCA GOLF COURSE HOLDCO, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                  (print or typewrite name of Transferee),                            (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                               (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                   , as attorney-in-fact, to transfer the same on the book s and records of the Company, with full power of substitution in the premises.

 

 

 

 

 

 

Dated:

 

 

Signature:

 

 

 

 

 

(Transferor)

 

Address:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

E-2


 

SCHEDULE F

 

LIST OF ENTITIES

 

Akron Management Corp.

Anthem Golf, LLC

April Sound Management Corp.

Bay Oaks Country Club, Inc.

Braemar Country Club, Inc.

Brookhaven Country Club, Inc.

Canyon Crest Country Club, Inc.

Canyon Gate at Las Vegas, Inc.

ClubCorp Golf of Georgia, L.P. (holding a 99% limited partnership interest)

ClubCorp Golf of Texas, L.P. (holding a 99% limited partnership interest)

Coto Property Holdings, Inc.

Countryside Country Club, Inc.

Crow Canyon Management Corp.

DeBary Management Corp.

Desert Falls Country Club, Inc.

Diamond Run Club, Inc.

Fair Oaks Club Corp.

FFFC Golf Acquisitions, L.L.C.

Fort Bend Acquisition Corp.

GCC Asset Management, Inc.

GRanch Golf Club, Inc.

Greenbrier Country Club, Inc.

Hackberry Creek Country Club, Inc.

Haile Plantation Management Corp.

Hearthstone Country Club, Inc.

Hill Country Golf, Inc.

Hunter’s Green Acquisition Corp.

Indigo Run Asset Corp.

Irving Club Acquisition Corp.

Kingwood Country Club, Inc.

Knollwood Country Club, Inc.

Lakeway Clubs, Inc.

Manager for CCHH, Inc.

Northwood Management Corp.

Oak Pointe Country Club, Inc.

Oakmont Management Corp.

Porter Valley Country Club, Inc.

Quail Hollow Management, Inc.

Queens Harbour Corporation

Richardson Country Club Corp.

Shadow Ridge Golf Club, Inc.

Shady Valley Management Corp.

Southern Trace Country Club of Shreveport, Inc.

Spring Valley Lake Country Club, Inc.

Tampa Palms Club, Inc.

 

F-1


 

The Club at Cimarron, Inc.

Timarron Golf Club, Inc.

Treesdale Country Club, Inc.

Walnut Creek Management Corporation

Wildflower Country Club, Inc.

Woodside Plantation Country Club, Inc.

 

F-2


 EX-3.19(A) 38 a2202241zex-3_19a.htm EX-3.19(A)

Exhibit 3.19(a)

 

 

State of Delaware
Secretary of State
 Division of Corporations
Delivered 01:55 PM 12/04/2006
FILED 01:27 PM 12/04/2006
SRV 061102846 - 4260905 FILE

 

CERTIFICATE OF FORMATION

 

OF

 

CCA MEZZANINE HOLDCO, LLC

 

This Certificate of Formation of CCA Mezzanine Holdco, LLC (the “LLC”), dated as of December 4,2006, is being duly executed and filed by Kurt J. Neumann, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. §18-101, et seq.).

 

FIRST. The name of the limited liability company formed hereby is CCA Mezzanine Holdco, LLC.

 

SECOND. The address of the registered office of the LLC in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

THIRD. The name and address of the registered agent for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first above written.

 

 

/s/ Kurt J. Neumann

 

Name: Kurt J. Neumann

 

Authorized Person

 


 EX-3.19(B) 39 a2202241zex-3_19b.htm EX-3.19(B)

Exhibit 3.19(b)

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

CCA MEZZANINE HOLDCO, LLC

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of CCA Mezzanine Holdco, LLC (the “Company”), is entered into by ClubCorp Mezzanine Borrower, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

On December 4, 2006, Kurt J. Neumann executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Agreement of ClubCorp Mezzanine Borrower, LLC, dated as of December 26, 2006 entered into by ClubCorp Mezzanine Borrower, LLC as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1. Name.

 

The name of the limited liability company continued hereby is CCA Mezzanine Holdco, LLC.

 

Section 2. Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc., 3030 LB J Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance, or such other location as may hereafter be determined by the Member.

 

Section 3. Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4. Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5. Members.

 

(a) The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b) The Member may act by written consent.

 

Section 6. Certificates.

 

Kurt J. Neumann was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware,, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7. Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a) to own interests and act as a member or partner (if applicable) in each of the entities identified on the list set forth on Schedule F hereto (such interests are collectively referred to herein as the “Property”);

 

(b) to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Property including, without limitation, the grant of a security interest in such Property;

 

(c) to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d) to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

2


 

(e) to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8. Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9. Management.

 

(a) Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b) Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c) Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

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(e) Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f) Committees of Directors.

 

(i)                        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                     In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                  Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g) Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h) Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i) Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

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Section 10. Reserved.

 

Section 11. Officers.

 

(a) Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b) President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c) Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d) Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s

 

5


 

inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e) Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f) Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g) Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12. Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13. Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14. Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon

 

6


 

any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15. Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16. Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17. Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18. Reserved.

 

Section 19. Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20. Exculpation and Indemnification.

 

(a) Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the

 

7


 

authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c) To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f) The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21. Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the

 

8


 

Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22. Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23. Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24. Dissolution.

 

(a) The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the

 

9


 

occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b) Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d) The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25. Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26. Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27. Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

10

 

Section 28. Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29. Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30. Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31. Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32. Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33. Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34. Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

11


 

waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited, liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in CCA Mezzanine Holdco, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

Section 35. Tax Status.

 

The Company is intended to be a disregarded entity for United States federal tax purposes.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

 

MEMBER:

 

 

 

 

 

CLUBCORP MEZZANINE BORROWER, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s Ingrid Keiser

 

 

 

Name: Ingrid Keiser

 

 

 

Title: Secretary

 

Signature Page to the A&R LLC Agreement — CCA Mezzanine Holdco LLC

 


 

SCHEDULE A

 

Definitions

 

A. Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on December 4, 2006, as amended or amended and restated from time to time.

 

“Company” means CCA Mezzanine Holdco, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp Mezzanine Borrower, LLC, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B. Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2

 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Membership
Interest

 

ClubCorp
Mezzanine
Borrower, LLC

 

c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1. Eric L. Affeldt

2. Eric C. Resnick

3. Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CCA MEZZANINE HOLDCO, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number:                           

                       % of Interests

 

CCA Mezzanine Holdco, LLC, a Delaware limited liability company (the “Company”), hereby certifies that                                 (the “Holder”) is the registered owner of                      % of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER          , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in CCA Mezzanine Holdco, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by                   as of the date set forth below.

 

Dated:

 

 

 

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF CCA MEZZANINE HOLDCO, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                      (print or typewrite name of Transferee),                        (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                    (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                           , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

(Transferor)

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

E-2


 

SCHEDULE F

 

LIST OF ENTITIES

 

Airways Golf, Inc.

Aliso Viejo Holding Corp.

Aspen Glen Golf Club Management Company

Athletic Club at the Equitable Center, Inc.

Bluegrass Club, LLC

Bunker Hill Club, Inc.

Capital City Club of Montgomery, Inc.

Capital City Club of Raleigh, Inc.

Capital Club, Inc.

Center Club, Inc.

Centre Club, Inc.

Citrus Club, Inc.

City Club of Washington, Inc.

Club at Boston College, Inc.

Club Le Conte, Inc.

ClubCorp Mexico, Inc.

Columbia Capital City Club Corp.

Columbia Tower Club, Inc.

Currituck Golf, LLC

Dayton Racquet Club, Inc.

Diamante’ Golf Club Management, Inc.

Diamante’ Golf Club Partners, Inc.

Empire Ranch, LLC

Exchange Club Management, Inc.

Fairlane Manor, Inc.

First City Club Management, Inc.

GCL Corporation

Glendale Management Corp.

GP Bear’s Best Atlanta, Inc.

GP Bear’s Best Las Vegas, Inc.

Granite Bay Management, Inc.

Greenspoint Club, Inc.

Harbour Club of Charleston, Inc.

Houston City Club, Inc.

IW Golf Club, Inc.

La Cima Club, Inc.

Laurel Springs Holdco, LLC

Le Glub, Inc.

LionsGate Golf Club, Inc.

MAC Club, LLC

Management Company for Eagle Ridge and The Preserve

Memorial Stadium Club Management Corp.

Memphis City Club, Inc.

Mission Hills Country Club, Inc.

Nashville Club Management, Inc.

New England Country Club Management, Inc.

 

F-1


 

Piedmont Club, Inc.

Prince William Club Management, LLC

Pyramid Club Management, Inc.

Renaissance Club, Inc.

River Creek Country Club, Inc.

Rivers Club, Inc.

Shoreby Club Management, Inc.

Silver Lake Management Corp.

Skyline Club, Inc.

Stonebriar Club, Inc.

Stonebriar Management Corp.

Stonehenge Club, Inc.

Summit Club, Inc.

Symphony Towers Club, Inc.

Teal Bend Golf Club, Inc.

The 191 Club, Inc.

The 410 Club Management Corp.

The Buckhead Club, Inc.

The Club at Society Center, Inc.

The Commerce Club, Inc.

The Downtown Club, Inc.

The Metropolitan Club of Chicago, Inc.

The Plaza Club - Hawaii, Ltd.

The Plaza Club of San Antonio, Inc.

The San Jose Club, Inc.

The Summit Club, Inc.

The University Club, Inc.

Tower City Club of Virginia, Inc.

Tower Club of Dallas, Inc.

Tower Club, Inc.

Town Point Club, Inc.

Turkey Creek Golf Club, Inc.

UMass Club Management, LLC

UNC Alumni Club Management, Inc.

University Club Management Co., Inc.

University Club of West Palm Beach, Inc.

University Club, Inc.

Westlake City Club, Inc.

Willow Creek Management, Inc.

 

F-2


 EX-3.20(A) 40 a2202241zex-3_20a.htm EX-3.20(A)

Exhibit 3.20(a)

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

CENTRE CLUB, INC.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Centre Club, Inc. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Centre Club, Inc.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on March 8, 1982.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The Articles of Incorporation of the Corporation are amended and restated in their entirety to read as follows:

 

ARTICLE I

 

The name of the Corporation is Centre Club, Inc.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

1


 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Tampa, State of Florida, including the sports or business club commonly known as Centre Club — Tampa (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, all of which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and

 

2


 

repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved..

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee,

 

3


 

trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

4


 

IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

 

 

 

 

Ingrid Keiser, Secretary

 

 

Signature Page to the A&R Articles of Incorporation — Centre Club, Inc.

 


 EX-3.20(B) 41 a2202241zex-3_20b.htm EX-3.20(B)

Exhibit 3.20(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CENTRE CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.       Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.       Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.       Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.       Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.       Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.       Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.       Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.       Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.       List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

3


 

required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.     Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.     Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.     Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and “procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.       Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.       Election; Resignation; Vacancies At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of

 

5


 

the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.       Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.       Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.       Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.       Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.       Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.       Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.       Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.       Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.       Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.       Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.       Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.       Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.       Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.       Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.       Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.       Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.       Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.       Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.       Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.       Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.       Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

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Section 7.2.       Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.       Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.       Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.       Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.       Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.21(A) 42 a2202241zex-3_21a.htm EX-3.21(A)

Exhibit 3.21(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

CITRUS CLUB, INC.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Citrus Club, Inc. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Citrus Club, Inc.  The original articles of incorporation were filed with the Secretary of State of the State of Florida on June 26, 1970.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The articles of incorporation of the Corporation are amended and restated in their entirety to read as follows:

 

ARTICLE I

 

The name of the Corporation is Citrus Club, Inc.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

(a)                                to manage, lease and/or operate one or more sports or business clubs, in the City of Orlando, State of Florida, including the sports or business club commonly known as Citrus Club (the “Business”);

 

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(b)                               to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                               to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, all of which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                               The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

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ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take

 

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any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

 

 

 

 

Ingrid Keiser, Secretary

 

 

Signature Page to the A&R Articles of Incorporation — Citrus Club, Inc.

 


 EX-3.21(B) 43 a2202241zex-3_21b.htm EX-3.21(B)

Exhibit 3.21(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CITRUS CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.       Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.       Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.       Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.       Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.       Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.       Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.       Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.       Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action, by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.       List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.     Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.     Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.     Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.       Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.       Election; Resignation; Vacancies At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of

 

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the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.       Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State oft and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.       Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.       Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.       Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.       Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.       Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.       Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.       Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.       Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.       Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.       Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.       Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.       Lost Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.       Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co- lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.       Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.       Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.       Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.       Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.       Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.       Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.       Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

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Section 7.2.       Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.       Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.       Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.       Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.       Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.22(A) 44 a2202241zex-3_22a.htm EX-3.22(A)

Exhibit 3.22(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

CITY CLUB OF WASHINGTON, INC.

 

TO:

DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS

 

BUSINESS AND PROFESSIONAL LICENSING ADMINISTRATION

 

CORPORATIONS DIVISION

 

The undersigned natural person of the age of eighteen years or more, authorized to act on behalf of the corporation described below, presents the following amended and restated articles of incorporation duly proposed and adopted in accordance with all applicable provisions of Title 29, Chapter 1 of the D.C. Code as amended:

 

FIRST:  The present name of the corporation is City Club of Washington, Inc. (the “Corporation”) and the date that the Corporation’s articles of incorporation were filed originally is September 9, 1985 under the name Federal Club Management Corp.

 

SECOND:  The period of the Corporation’s duration is perpetual.

 

THIRD: The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the District of Columbia, including the sports or business clubs commonly known as City Club of Washington and Club at Franklin Square (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the District of Columbia Business Corporation Act.

 


 

FOURTH:  [Reserved].

 

FIFTH:  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.  The minimum amount of capital with which the Corporation shall commence business shall be not less than $1,000.

 

SIXTH:  [Reserved.]

 

SEVENTH:  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

EIGHTH:

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

NINTH:  In furtherance and not in limitation of the powers conferred by the laws of the District of Columbia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

TENTH: The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ELEVENTH:  [Reserved.]

 

TWELFTH:  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the District of Columbia Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

THIRTEENTH:  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the District of Columbia at the time in force may be added or inserted, in the manner now or hereafter

 


 

prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

FOURTEENTH:  [Reserved.]

 

FIFTEENTH:  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

[The remainder of this page is intentionally blank.]

 


 

Dated:  November 10, 2010.

 

CORPORATE SEAL

 

 

 

CITY CLUB OF WASHINGTON, INC.

 

 

 

 

 

Signature of President or Vice President

 

 

 

 

 

 

 

 

/s/ Eric Affeldt

 

 

Name: Eric Affeldt

 

 

Title: President

 

Attest:

 

Signature of Secretary or Asst. Secretary

 

 

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Title: Secretary

 

 

 


 EX-3.22(B) 45 a2202241zex-3_22b.htm EX-3.22(B)

Exhibit 3.22(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CITY CLUB OF WASHINGTON, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without Washington, District of Columbia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, or such other persons as are authorized by the District of Columbia Business Corporation Act, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than fifty (50) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than fifty (50) days prior to such other action. If no record date is fixed then except as otherwise provided by law: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and such written consent is filed with the minutes of proceedings of the shareholders.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of

 

4


 

Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. Except to the extent required by the Corporation’s Articles of Incorporation, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election: Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without Washington, District of Columbia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without Washington, District of Columbia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides,

 

6


 

a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7


 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

10


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co- lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

11


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

12


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.23(A) 46 a2202241zex-3_23a.htm EX-3.23(A)

Exhibit 3.23(a)

 

MA SOC  Filing Number: 201017450130         Date: 11/12/2010 5:31:00 PM

 

DPC

 

The Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512.

 

FORM MUST BE TYPED

Restated Articles of Organization

FORM MUST BE TYPED

(General Laws Chapter 156D, Section 10.07, 950 CMR 113.35)

 

(l)

Exact name of corporation:

Club at Boston College, Inc.

 

 

(2)

Registered office address:

84 State Street, Boston, MA 02109

 

 

(number, street, city or town, state, zip code)

 

 

(3)

Date adopted:

November 9, 2010

 

 

(month, day, year)

 

 

(4)

Approved by:

 

 

 

(check appropriate box)

 

 

 

o    the directors without shareholder approval and shareholder approval was not required;

 

 

 

OR

 

 

 

x   the board of directors and the shareholders in the manner required by G.L. Chapter 156D and the corporation’s articles of organization.

 

 

(5)

The following Information is required to be included in the articles of organization pursuant to G.L. Chapter 156D, Section 2.02 except that the supplemental information provided for in Article VIII is not required:*

 

ARTICLE I

The exact name of the corporation is:

 

 

Club at Boston College, Inc.

 

ARTICLE II

 

Unless the article of organization otherwise provide, all corporations formed pursuant to G.L. Chapter 156D have the purpose of engaging in any lawful business. Please specify if you want a more limited purpose:**

 

 

See Article SECOND in Exhibit A attached hereto.

 

*Changes to Article VIII must be made by filing a statement of change of supplemental information form.

**Professional corporations governed by G.L Chapter 156A and must specify the professional activities of the corporation.

 


 

ARTICLE III

 

State the total number of shares and par value, * if any, of each class of stock that the corporation is authorized to issue. All corporations must authorize stock. If only one class or series is authorized, it is not necessary to specify any particular designation.

 

WITHOUT PAR VALUE

 

WITH PAR VALUE

 

TYPE

 

NUMBER OF SHARES

 

TYPE

 

NUMBER OF SHARES

 

PAR VALUE

 

 

 

 

 

Common

 

1,000

 

$

1.00

 

 

ARTICLE IV

 

Prior to the issuance of shares of any class or series, the articles of organization must set forth the preferences, limitations and relative rights of that class or series. The articles may also limit the type or specify the minimum amount of consideration for which shares of any class or series may be issued. Please set forth the preferences, limitations and relative rights of each class or series and, if desired, the required type and minimum amount of consideration to he received.

 

Not Applicable

 

ARTICLE V

 

The restrictions, if any, imposed by the articles or organization upon the transfer of shares of any class or series of stock are:

 

Not Applicable

 

ARTICLE VI

 

Other lawful provisions, and if there are no such provisions, this article may be left blank.

 

See Articles SIXTH-A through SIXTH-I in Exhibit A attached hereto.

 

Note: The preceding six (6) articles are considered to be permanent and may be changed only by filing appropriate articles of amendments.

 

* G.L. Chapter 156D eliminates the concept of par value, however a corporation may specify par value in Article III. See G.L. Chapter 156D, Section 6.31, and the comments relating thereto.

 


 

ARTICLE VII

 

The effective date of organization of the corporation is the date and time the articles were received for filing if the articles are not rejected within the time prescribed by law. If a later effective date is desired, specify such date, which may not be later than the 90th day after the articles are received for filing:

 

It is hereby certified that these restated articles of organization consolidate all amendments into a single document. If a new amendment authorizes an exchange, or effects a reclassification or cancellation, of issued shares, provisions for implementing that action are set forth in these restated articles unless contained in the text of the amendment.

 

Specify the number(s) of the article(s) being amended: ARTICLES SECOND AND SIXTH

 

 

Signed by:

/s/ Ingrid Keiser

 

 

(Signature of authorized individual)

 

 

o  Chairman of the board of directors

 

o  President

 

x  Other officer

 

o  Court-appointed fiduciary

 

 

on this 10th 

day of    November,

2010.

 


 

EXHIBIT A TO ARTICLES OF AMENDMENT

 

FIRST. The name of the corporation is Club at Boston College, Inc. (the “Corporation”).

 

SECOND. The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Boston College Club, in the City of Boston, State of Massachusetts (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Massachusetts Business Corporation Act.

 

THIRD. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FOURTH. [Reserved].

 

FIFTH. [Reserved].

 

SIXTH-A. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH-B.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

1


 

(b)                   The number of director of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

SIXTH-C. In furtherance and not in limitation of the powers conferred by the laws of the State of Massachusetts, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

SIXTH-D. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

SIXTH-E. [Reserved].

 

SIXTH-F. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Massachusetts Business Corporation Act as the same exists or may hereafter be amended. Any amendment, modification or repeat of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

SIXTH-G. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Organization, and other provisions authorized by the laws of the State of Massachusetts at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Organization in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

SIXTH-H. [Reserved].

 

SIXTH-I. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies (, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property, or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

2


 

MA SOC  Filing Number: 201017450130         Date: 11/12/2010 5:31:00 PM

 

THE COMMONWEALTH OF MASSACHUSETTS

 

I hereby certify that, upon examination of this document, duly submitted to me, it appears that the provisions of the General Laws relative to corporations have been complied with, and I hereby approve said articles; and the filing fee having been paid, said articles are deemed to have been filed with me on:

 

November 12, 2010 05:31 PM

 

 

 

/s/ William Francis Galvin

 

 

 

WILLIAM FRANCIS GALVIN

 

 

 

Secretary of the Commonwealth

 


 EX-3.23(B) 47 a2202241zex-3_23b.htm EX-3.23(B)

Exhibit 3.23(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CLUB AT BOSTON COLLEGE, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Massachusetts, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limite4 to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.     Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Massachusetts, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspectors before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Massachusetts and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Massachusetts whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co- lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid, in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another coloration, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders; Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.24(A) 48 a2202241zex-3_24a.htm EX-3.24(A)

Exhibit 3.24(a)

 

CERTIFICATE REGARDING

 

AMENDED AND RESTATED CHARTER

 

OF

 

CLUB LE CONTE, INC.

 

Pursuant to Section 48-20-107 (d) of the Tennessee Business Corporation Act, the undersigned, in connection with the filing of the Amended and Restated Charter of Club Le Conte, Inc., does hereby certify as follows:

 

1.                                       The Amended and Restated Charter contains an amendment or amendments to the Charter requiring shareholder approval.

 

2.                                       The name of the Corporation is:  Club Le Conte, Inc.

 

3.                                       The text of each amendment adopted is as follows:

 

See Exhibit A attached hereto and incorporated herein by reference.

 

4.                                       The date of each amendment’s adoption is November 9, 2010.

 

5.                                       Each amendment was duly adopted by the shareholder.

 

 

Secretary

 

/s/ Ingrid Keiser

Signer’s Capacity

 

Signature

 

 

 

 

 

 

November 10, 2010

 

Ingrid Keiser

Date

 

Name of Signer (Typed or Printed)

 

 

 

 

 

 

0049999

 

 

Corporation’s Control Number

 

 

(If Known)

 

 

 


 

EXHIBIT A

 

AMENDED AND RESTATED CHARTER

 

OF

 

CLUB LE CONTE, INC.

 

(For – Profit)

 

Pursuant to Section 48-20-107 of the Tennessee Business Corporation Act, this Amended and Restated Charter amends and restates the original Articles of Incorporation of Club Le Conte, Inc. (the “Corporation”) filed on April 3, 1978, as heretofore amended, as set forth herein.

 

1.                                       The name of the Corporation is Club Le Conte, Inc.

 

2.                                       The Corporation is a for-profit corporation formed under the laws of Tennessee, and its principal office address in Tennessee is United American Plaza, Knoxville, Tennessee 37929.

 

3.                                       The text of the Amended and Restated Charter of Club Le Conte, Inc. is as follows:

 

FIRST.  The name of the corporation is Club Le Conte, Inc.

 

SECOND.  The street address and zip code of the Corporation’s registered office in the State of Tennessee is 2908 Poston Avenue in the City of Nashville, County of Davidson, 37203.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business club, in the City of Knoxville, State of Tennessee, including the sports or business club commonly known as Club Le Conte (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and

 

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all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Tennessee Business Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class of shares that together have unlimited voting rights and are entitled to receive the net assets of the Corporation upon dissolution.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Tennessee, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the

 

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extent such elimination or limitation of personal liability is not permitted under the Tennessee Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Charter, and other provisions authorized by the laws of the State of Tennessee at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Charter in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, or sequestrator (or other similar official) of this Corporation for a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  This Amended and Restated Charter was duly approved by the Board of Directors and the shareholder of the Corporation by that certain Consent Action dated November 9, 2010, and pursuant to Section 48-20-107 of the Tennessee Business Corporation Act.  This Amended and Restated Charter supersedes the original articles of incorporation and all amendments to them.

 

SIXTEENTH.  The Corporation is for profit.

 

SEVENTEENTH.  The street address and zip code of the principal office of the Corporation is United American Plaza, Knoxville, Tennessee 37929.

 

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IN WITNESS WHEREOF, the undersigned, being a duly authorized Officer of the Corporation, has executed this Amended and Restated Charter this 10th day of November, 2010.

 

 

Secretary

 

/s/ Ingrid Keiser

Signer’s Capacity

 

 Ingrid Keiser

 

4


 EX-3.24(B) 49 a2202241zex-3_24b.htm EX-3.24(B)

Exhibit 3.24(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CLUB LE CONTE, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Tennessee, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the charter or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the charter or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the charter, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the charter, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder which list must be available for inspection beginning at least two (2) business days after notice of the meeting is given to which the list was prepared and continuing through the meeting. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled

 

3


 

to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. Unless otherwise restricted by the charter, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote (except that at least ten (10) days notice must be given to any nonvoting shareholders if required by the Tennessee Business Corporation Act or the charter), if all shareholders entitled to vote on the action consent to taking such action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation for inclusion n the minutes or filing with the corporate records by delivery to its registered office in the State of Tennessee, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

4


 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the charter, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Tennessee and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Tennessee whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the charter, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the charter or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7


 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may create one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The creation of a committee and appointment of a member or members to it must be approved by the greater of (a) a majority of all of the directors in office when the action is taken, or (b) the number of directors required by the charter or by-laws to take action pursuant to Section 2.6 hereof. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8


 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

10


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the charter, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders. Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, unless the charter or the Tennessee Business Corporation Act reserves this power exclusively to the shareholders in whole or in part. The shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.25(A) 50 a2202241zex-3_25a.htm EX-3.25(A)

Exhibit 3.25(a)

 

FILED

 

CERTIFICATE OF AMENDMENT

 

 

IN THE OFFICE OF THE

 

OF

 

 

SECRETARY OF STATE OF THE

 

ARTICLES OF INCORPORATION

 

Rec. #C28800

STATE OF NEVADA

 

OF

 

 

 

 

PACIFIC CLUB CORPORATION

 

 

AUG 15 1994

 

 

 

 

 

 

 

 

 

CHERYL A. LAU SECRETARY OF STATE

 

 

 

 

 

 

 

 

 

/s/ CHERYL A. LAU

 

 

 

 

No.

1604-91

 

 

 

 

 

We the undersigned as Vice President and Secretary of Pacific Club Corporation do hereby certify:

 

That the Board of Directors of said corporation by statement of unanimous consent dated July 21, 1994, adopted a resolution to amend the original articles as follows:

 

Article I is hereby amended to read as follows:

 

“The name of this corporation is: ClubCorp — Asia”.

 

The number of shares of the corporation outstanding and entitled to vote on an amendment to the Articles of Incorporation is 1,000; that the said change and amendment has been consented to and approved by a majority vote of the stockholders holding at least a majority of each class of stock outstanding and entitled to vote thereon.

 

Dated July 21, 1994

 

 

 

PACIFIC CLUB CORPORATION

 

 

 

By

/s/ Jerry W. Dickenson

 

 

Jerry W. Dickenson, Vice President

 

 

 

 

By

/s/ Terry A. Taylor

 

 

Terry A. Taylor, Secretary

 

 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Jerry W. Dickenson, Vice President of PACIFIC CLUB CORPORATION, who acknowleded that he executed the above instrument.

 

 

 

/s/ Julie H. Green

[Notary Public Stamp]

Notary Public in and for The

State of Texas

 

 

RECEIVED

 

 

 

AUG 05 1994

 

 

 

Secretary of State

 

1


 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Terry A. Taylor, Secretary of PACIFIC CLUB CORPORATION, who acknowleded that he executed the above instrument.

 

 

:

/s/ Julie H. Green

[Notary Public Stamp]

Notary Public in and for The

State of Texas

 

 

RECEIVED

 

 

 

AUG 05 1994

 

 

 

Secretary of State

 

2


 

FILED

 

CERTIFICATE OF AMENDMENT OF

 

FILING FEE — 75.00 TS REC#C29051

IN THE OFFICE OF THE

 

ARTICLES OF INCORPORATION

 

PAGE & ADDISON

SECRETARY OF STATE OF THE

 

OF

 

DALLAS OFFICE/14651 DALLAS PKWY #700

STATE OF NEVADA

 

PACIFIC JOINT VENTURER, INC.

 

 

 

 

 

DALLAS, TX 75240

NOV 26 1991

 

 

 

 

 

 

 

 

 

CHERYL A. LAU SECRETARY OF STATE

 

 

 

 

/s/ CHERYL A. LAU

 

 

 

 

No.

1604-91

 

 

 

 

 

Linda L. Blanton, the sole incorporator, hereby certifies that:

 

1.                         The original articles were filed in the Office of the Secretary of State on March 1, 1991, and a certified copy of the articles were filed in the Office of the County Clerk on March 18, 1991.

 

2.                         As of the date of this certificate, no part of the capital of the corporation has been paid.

 

3.                         The following amendment to the articles of incorporation of this corporation is hereby adopted:

 

Article I is amended to read as follows:

 

“The name of this corporation is PACIFIC CLUB CORPORATION.”

 

 

 

/s/ Linda L. Blanton

 

Linda L. Blanton, Incorporator

 

 

STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, the undersigned authority, on this day personally appeared Linda L. Blanton, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 22nd day of November, 1991.

 

 

:

/s/ Connie R. Quinton

[Notary Public Stamp]

Notary Public, State of Texas

 

 

 

 

 

(Typed or Printed Name of Notary)

 

 

 

My Commission Expires:

 

 


 

FILED

 

ARTICLES OF INCORPORATION

 

FILING FEE $ 125.00

IN THE OFFICE OF THE

 

 

 

RS RECEIPT # 5512

SECRETARY OF STATE OF THE

 

OF

 

PAGE & ADDISON
SUITE 700

STATE OF NEVADA

 

 

 

 

 

PACIFIC JOINT VENTURER, INC.

 

14651 DALLAS PARKWAY

MAR 01 1991

 

 

 

DALLAS, TEXAS 75240

 

 

 

 

 

1604-91

 

 

 

 

 

 

 

 

 

CHERYL A. LAU SECRETARY OF STATE

 

 

 

 

/s/ CHERYL A. LAU

 

 

 

 

No.

[ILLEGIBLE]

 

 

 

 

 

I, the undersigned, for the purpose of forming a corporation under and pursuant to the laws of the State of Nevada, do hereby certify that:

 

ARTICLE I

 

The name of this corporation is Pacific Joint Venturer, Inc.

 

ARTICLE II

 

The principal office and place business in Nevada of this corporation shall be located at One East First Street, Reno, Nevada 89501, in the Country of Washoe.

 

Offices for the transaction of any business of this corporation, and where meetings of the Board of Directors and of the stockholders may be held, may be established and maintained in any other part of the State of Nevada, or in any other state, territory, or possession of the United States of America, or in any foreign country.

 

ARTICLE III

 

The nature of the business and objects and purposes proposed to be transacted, promoted, or carried on by the corporation are to engage in any lawful activity.

 

ARTICLE IV

 

The total authorized capital stock of the corporation shall consist of one thousand (1,000) shares, with a par value of One Dollar ($1.00) per share, all of which shall be entitled to voting power.

 

ARTICLE V

 

The members of the governing board of the corporation shall be styled Directors, and the number thereof at the inception of this corporation shall be three (3) or more. The number of Directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of the corporation and the statutes of the State of Nevada. Directors need not be shareholders, but shall be full age and at least one shall be a citizen of the United States. The names and post office

 

1


 

addresses of the first Board of Directors, which shall consist of three (3) persons, and who shall hold office until their successors are duly elected and qualified are as follows:

 

Murry E. Page

14651 Dallas Parkway

 

Suite 700

 

Dallas, Texas 75240

 

 

Deborah G. Means

14651 Dallas Parkway

 

Suite 700

 

Dallas, Texas 75240

 

 

Richard T. Cassidy

14651 Dallas Parkway

 

Suite 700

 

Dallas, Texas 75240

 

ARTICLE VI

 

The capital stock of the corporation, after the amount of the subscription price has been paid in money, property, or services, as the Directors shall determine, shall not be subject to assessment to pay the debts of the corporation, nor for any other purpose, and no stock issued as fully paid up shall ever be assessable or assessed, and the Articles of Incorporation shall not be amended in this particular.

 

ARTICLE VII

 

This corporation shall have perpetual existence.

 

ARTICLE VIII

 

The name and address of the incorporator signing these Articles of Incorporation is as follows:

 

Linda L. Blanton

14651 Dallas Parkway

 

Suite 700

 

Dallas, Texas 75240

 

IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of Incorporation this 14th day of February, 1991.

 

 

 

/s/ Linda L. Blanton

 

Linda L. Blanton

 

 

 

RECEIVED

 

 

 

FEB 26 1991

 

 

 

SECRETARY OF STATE

 

2


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Linda L. Blanton, L. BLANTON, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 14th day of February, 1991.

 

 

:

/s/ Connie R. Quinton

[Notary Public Stamp]

Notary Public, State of Texas

 

 

 

 

 

RECEIVED

 

 

 

FEB 26 1991

 

 

 

SECRETARY OF STATE

 

3

 

FILED

 

 

 

 

IN THE OFFICE OF THE

 

CERTIFICATE OF ACCEPTANCE

 

 

SECRETARY OF STATE OF THE

 

OF APPOINTMENT BY RESIDENT AGENT

 

 

STATE OF NEVADA

 

 

 

 

MAR 01 1991

 

 

 

 

 

 

 

 

 

1604-91

 

 

 

 

CHERYL A. LAU

 

 

 

 

 

 

 

 

 

/s/ CHERYL A. LAU

 

 

 

 

No.

 

 

 

 

 

 

IN THE MATTER OF PACIFIC JOINT VENTURER, INC.: THE CORPORATION TRUST COMPANY OF NEVADA hereby certifies that on the 19th day of February, 1991. It accepted the appointment as Resident Agent of the above entitled corporation in accordance with Sec. 78.090, NRS [ILLEGIBLE]

 

Furthermore, that the principal office in this State is located at One East First Street, Town of Reno, County of Washne, State of Nevada.

 

IN WITNESS WHEREOF, it has hereunto set its hand this 19th day of February 1991.

 

 

 

THE CORPORATION TRUST COMPANY OF NEVADA.

RECEIVED

 

Resident Agent

 

 

 

 

FEB 26 1991

 

 

 

 

 

By:

/s/ Michael E. Jones

SECRETARY OF STATE

 

 

Michael E. Jones, Assistant Secretary

 

SEC [ILLEGIBLE].  Every corporation shall have a resident agent, who may be either an individual or a corporation, resident of, or located in this state, in charge of its principal office. Every such resident agent shall, within ten days after acceptance of an appointment as such, file a certificate thereof in the office of the secretary of the state, and a copy of such certificate in the office of the county clerk of the county in which the principal office of the corporation in this state shall be located. The resident agent may be any bank, or banking corporation, or other corporation located and doing business in this state, and any such bank and any such corporation, acting as such resident agent, shall have authority * * *.

 

ORIGINAL DOCUMENT INSUFFICIENT

 

QUALITY FOR PROPER REPRODUCTION

 

SECRETARY OF STATE

 

 


 

FILED

 

ARTICLES OF MERGER

 

 

IN THE OFFICE OF THE

 

of

 

 

SECRETARY OF STATE OF THE

 

PRIVATE CLUBS

 

 

STATE OF NEVADA

 

INTERNATIONAL, INC.

 

 

 

(a Nevada corporation)

 

DEC 30 1994

 

into

 

 

CHERYL A. LAU

 

CLUBCORP - ASIA

 

 

 

 

(a Nevada corporation)

 

 

/s/ CHERYL A. LAU

 

 

 

 

No.

1604-91

 

 

 

 

 

Pursuant to the provisions of Nevada Revised Statutes 78.458, the undersigned corporation submits the following Articles of Merger for the purpose of merging Private Clubs International, Inc. into ClubCorp - Asia:

 

1.       The name and place of incorporation of the subsidiary corporation and the parent corporation is as follows:

 

Parent Corporation:

ClubCorp - Asia

Incorporated under the laws of the State of Nevada

 

Subsidairy Corporation:

Private Clubs International, Inc.

Incorporated under the laws of the State of Nevada

 

2.       A Plan and Agreement of Merger, a copy of which is attached as Exhibit “A” and incorporated herein by this reference, has been adopted by the Board of Directors of ClubCorp - Asia.

 

3.       The Plan and Agreement of Merger provides, inter alia:

 

(a)                    The names of the parent an subsidiary;

(b)                   The manner and basis of converting the shares of the subsidiary into shares, obligations or other securities of the parent corporation; and

(c)                    The articles of incorporation of the parent corporation will not differ from its articles before the merger.

 

4.       The shareholder of the parent corporation has waived in writing the mailing requirement of Nevada Revised Statutes 78.457.3

 

1


 

DATED: December 1, 1994

 

 

 

The Parent Corporation

 

 

 

CLUBCORP - ASIA

 

 

 

 

 

 

 

By

/s/ Robert H. Dedman, Jr.

 

 

Robert H. Dedman, Jr.

 

Its

President

 

 

 

 

 

 

 

And

/s/ Terry A. Taylor

 

 

Terry A. Taylor

 

Its

Secretary

 

STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, a notary public, on this day personally appeared Robert H. Dedman, Jr., President of ClubCorp - Asia, a Nevada corporation, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements contained therein are true and correct and that he executed the Articles of Merger in the capacity stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 23 day of December, 1994.

 

 

/s/ Vicki Wallace

 

Notary Public, State of Texas

 

 

 

 

 

[Notary Public Stamp]

 

STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, a notary public, on this day personally appeared Terry A. Taylor, Secretary of ClubCorp - Asia, a Nevada corporation, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements contained therein are true and correct and that he executed the Articles of Merger in the capacity stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 21st day of December, 1994.

 

 

/s/ Julie H. Green

[Notary Public Stamp]

Notary Public, State of Texas

 

2


 

PLAN AND AGREEMENT OF MERGER
of
PRIVATE CLUBS INTERNATIONAL, INC.
into
CLUBCORP - ASIA

 

THIS AGREEMENT, dated as of the 1st day of December, 1994, by and between Private Clubs International, Inc. (hereinafter sometimes referred to as “PCI” and as the “Merged Corporation”) and ClubCorp - Asia (hereinafter sometimes referred to as “ClubCorp” and as the “Surviving Corporation”). PCI and ClubCorp are hereinafter sometimes collectively referred to as the “Constituent Corporations.” The agreement of the Constituent Corporations is as follows:

 

W I T N E S S E T H

 

WHEREAS, PCI is a corporation duly organized and existing under the laws of the State of Nevada, having been incorporated on November 20, 1991, with its registered office being located at One East First Street, Reno, Nevada 89501, and the name of its registered agent being The Corporation Trust Company; and

 

WHEREAS, ClubCorp is a corporation duly organized and existing under the laws of the State of Nevada, having been incorporated on March l, 1991, with its registered office being located at One East First Street, Reno, Nevada 89501, and the name of its registered agent being The Corporation Trust Company of Nevada; and

 

Whereas, the authorized capital stock of PCI consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by ClubCorp; and

 

WHEREAS, the authorized capital stock of ClubCorp consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by CCA International, Inc.; and

 

WHEREAS, the Board of Directors of the Constituent Corporations, respectively, deem it advisable for the general welfare and advantage of the Constituent Corporations, that the Constituent Corporations merge into a single corporation pursuant to this Agreement, and the Constituent Corporations respectively desire to so merge pursuant to this Agreement and pursuant to the applicable provisions of the laws of the States of Nevada.

 

EXHIBIT “A”

 

1


 

NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereby agree, in accordance with the applicable provisions of the laws of the State of Nevada that the Constituent Corporations shall be merged into a single corporation, to wit: ClubCorp Asia, a Nevada corporation, one of the Constituent Corporations, which is not a new corporation, and which shall continue its corporate existence and be the corporation surviving the merger, and the terms and conditions of the merger hereby agreed upon (hereinafter called the “Merger”) which the parties covenant to observe, keep, and perform, and the mode of carrying the same into effect are and shall be as hereafter set forth:

 

ARTICLE 1.

 

EFFECTIVE TIME OF THE MERGER

 

1.1. At the effective time of the Merger, the separate existence of the Merged Corporation shall cease and shall be merged into the Surviving Corporation. Consummation of this Agreement shall be effected on the date on which the Articles of Merger in substantially the form annexed hereto as Exhibit “A” are filed in the office of the Secretary of State of the State of Nevada.

 

ARTICLE 2.

 

GOVERNING LAW;
CERTIFICATE OF INCORPORATION

 

2.1. The laws which are to govern the Surviving Corporation are the laws of the State of Nevada. The Articles of Incorporation of ClubCorp, shall, at the effective time of the Merger, remain in effect and unchanged thereafter until the same shall be further amended or altered in accordance with the provisions thereof.

 

ARTICLE 3.

 

BYLAWS

 

3.1. The bylaws of ClubCorp, shall, at the effective time of the Merger, remain in effect and unchanged thereafter until the same shall be further amended or altered in accordance with the provisions thereof.

 

ARTICLE 4.

 

DIRECTORS AND OFFICERS

 

4.1. The directors of ClubCorp at the effective time of the Merger shall be the directors of the Surviving Corporation until their respective successors are duly elected and qualified. Subject to the authority of the Board of Directors, as provided

 

EXHIBIT “A”

 

2


 

by law and the bylaws of the Surviving Corporation, the officers of ClubCorp at the effective time of the Merger shall be the officers of the Surviving Corporation.

 

ARTICLE 5.

 

CONVERSION OF SHARES IN THE MERGER

 

5.1. The mode of carrying into effect the Merger provided in this Agreement and the manner and basis of converting the shares of the Constituent Corporations into shares of the Surviving Corporation are as follows:

 

5.1.1. ClubCorp’s Common Stock. None of the shares of common stock, par value $1.00 per share, of ClubCorp issued at the effective time of the Merger shall be converted as a result of the Merger, but all of such shares shall remain issued shares of common stock of the Surviving Corporation.

 

5.1.2. PCI’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of PCI issued and outstanding shall be cancelled and not converted.

 

5.1.3. Surrender of Merged Corporation’s Certificate. As soon as practicable after the Merger becomes effective, the stock certificate representing common stock of the Merged Corporation issued and outstanding at the time the Merger becomes effective shall be surrendered, as above provided.

 

ARTICLE 6.

 

EFFECT OF THE MERGER

 

6.1. At the effective time of the Merger, the Surviving Corporation shall succeed to, without other transfer, and shall possess and enjoy all the rights, privileges, immunities, powers, and franchises, both of a public and a private nature, and be subject to all the restrictions, disabilities, and duties of the Constituent Corporations, and all the rights, privileges, immunities, powers, and franchises of the Constituent Corporations and all property, real, personal, and mixed, and all debts due to the Constituent Corporations on whatever account, for stock subscriptions, as well as for all other things in action or belonging to said corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, immunities, powers, and franchises, and all and every other interest shall be thereafter as effectually the property of the Surviving Corporation as they were of the respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in any Constituent Corporation shall not revert or be in any way impaired by reason of the Merger; provided, however,

 

EXHIBIT “A”

 

3


 

that all rights of creditors and all liens upon any property of any Constituent Corporation shall be preserved unimpaired, limited in lien to the property affected by such liens at the effective time of the Merger, and all debts, liabilities, and duties of said Constituent Corporations, respectively, shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities, and duties had been incurred or contracted by the Surviving Corporation.

 

ARTICLE 7.

 

ACCOUNTING MATTERS

 

7.1. The assets and liabilities of the Constituent Corporations as of the effective time of the Merger shall be taken up on the books of the Surviving Corporation at the amounts at which they shall be carried at that time on the books of the respective Constituent Corporations. The amount of capital of the Surviving Corporation after the Merger shall be equal to the sum of the aggregate par value of the common stock that will remain issued upon the Merger. The surplus of the Surviving Corporation after the Merger, including any surplus arising in the Merger, shall be available to be used for any legal purposes for which surplus may be used.

 

ARTICLE 8.

 

APPROVAL OF SHAREHOLDERS ;
FILING OF CERTIFICATE OF MERGER

 

8.1. This Agreement has not been submitted to CCA International, Inc. as the shareholder of the Surviving Corporation, since pursuant to Nevada Revised Statutes 78.457 the Plan and Agreement of Merger requires no action of the stockholders of the Surviving Corporation. Articles of Merger in substantially the form annexed hereby an Exhibit “A” shall be signed, verified, and delivered to the Secretary of State of the State of Nevada for filing.

 

ARTICLE 9.

 

REPRESENTATIONS AND WARRANTIES OF MERGED CORPORATION

 

9.1. The Merged Corporation represents and warrants to the Surviving Corporation as follows:

 

9.1.1. Organization, Etc. The Merged Corporation is duly organized, validly existing, and in good standing under the laws of the State of Nevada. The Merged Corporation has corporate power to carry on its business as it is now being conducted and is qualified

 

EXHIBIT “A”

 

4

 

to do business in every jurisdiction in which the character and location of the assets owned by it or the nature of the business transacted by it requires qualification.

 

9.1.2. Capitalization. The capitalization of the Merged Corporation consists of 1,000 authorized shares of common stock (par value $1.00 per share), of which 1,000 shares are issued and outstanding, as of the date hereof, and are owned by ClubCorp. Each issued share is validly issued, fully paid, and nonassessable.

 

9.2. Further Warranties and Representations.

 

9.2.1. The Merged Corporation has and on the closing date will have good and marketable title in fee simple to all lands and buildings shown as assets in its records and books of account, free and clear of all liens, encumbrances, and charges, except as reflected in the aforesaid financial statements and except for current taxes and assessments not delinquent and liens, encumbrances, and charges shown in its records and books of account which are not substantial in character or amount, and which do not materially detract from the value or interfere with the use of the properties subject thereto or affected thereby. The Merged Corporation has and on the effective date of Merger will have valid leases under which it is entitled to occupy and use in its business all real property of which it is lessee, and the Merged Corporation has no knowledge of any default under any such lease.

 

9.2.2. The Merged Corporation has and on the effective date of Merger will have good and marketable title to the machinery, equipment, merchandise, materials, supplies, and other property of every kind, tangible or intangible, contained in its offices, plants, and other facilities or shown as assets in its records and books of account, free and clear of all liens, encumbrances, and charges, except as reflected in its financial statements and except for liens, encumbrances, and charges, if any, which do not materially detract from the value of or interfere with the use of the properties subject thereto or affected thereby. The Merged Corporation has and on the effective date of Merger will have valid leases under which it is entitled to use in its business all personal property of which it is lessee, and the Merged Corporation has no knowledge of any default under any such lease.

 

 

EXHIBIT “A”

 

 

 

 

 

5


 

9.2.3. All taxes imposed by the United States of America or by any foreign country or by any state, municipality, subdivision, or instrumentality of the United States of America or of any foreign country or by any other taxing authority which are due or payable by the Merged Corporation, and all price redetermination or renegotiation claims asserted or that may be asserted against it have been paid in full or are adequately provided for by reserves shown in the records and books of account of the Merged Corporation and will be so paid or provided for on the closing date. The Merged Corporation has no knowledge of any unassessed tax deficiency proposed or threatened against it.

 

9.2.4. The Merged Corporation is adequately insured with respect to risks normally insured against by companies similarly situated. All such policies are in full force and effect.

 

9.2.5. There is no suit, action, or legal or administrative proceeding pending or, to the knowledge of the Merged Corporation threatened against it which, if adversely determined, might materially and adversely affect the financial condition of the Merged Corporation or the conduct of its business, nor is there any decree, injunction, or order of any court, governmental department, or agency outstanding against the merged Corporation having any such effect.

 

9.2.6. The Merged Corporation is not in default in any material respect under the terms of any material outstanding contract, agreement, lease, or other commitment.

 

9.2.7. At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of or constitute a default under any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Merged Corporation is a party.

 

9.2.8. The Merged Corporation has all necessary licenses, franchises, permits, and other governmental authorizations and are valid and sufficient for all businesses presently carried on by the Merged Corporation.

 

 

EXHIBIT “A”

 

 

 

 

 

6


 

ARTICLE 10.

 

REPRESENTATIONS AND WARRANTIES OF SURVIVING CORPORATION

 

10.1. The Surviving Corporation represents and warrants to the Merged Corporations as follows:

 

10.1.1. Organization. The Surviving Corporation is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada. The Surviving Corporation has corporate power to carry on its business as it is now being conducted and is qualified to do business in every jurisdiction in which the character and location of the assets owned by it or the nature of the business transacted by it require qualification.

 

10.1.2. Capitalization. The Surviving Corporation’s capitalization consists of 1,000 authorized shares of common stock (par value $1.00 per share), of which 1,000 shares are issued and outstanding, as of the data hereof, and are owned by CCA International, Inc. Bach issued share is validly issued, fully paid, and nonassessable.

 

10.1.3. Litigation and Proceedings. There is no suit, action, or legal or administrative proceeding pending or, to the knowledge of the Surviving Corporation, threatened against it which, if adversely determined, might materially and adversely affect the financial condition of the Surviving Corporation or the conduct of its business, nor is there any decree, injunction, or order of any court, governmental department, or agency outstanding against the Surviving Corporation having any such effect.

 

10.1.4. Material Contracts. The Surviving Corporation is not in default in any material respect under the terms of any material outstanding contract, agreement, lease, or other commitment.

 

10.1.5. No Conflict with Other Instruments. At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of, nor constitute a default under, any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Surviving Corporation is a party.

 

 

EXHIBIT “A”

 

 

 

 

 

7


 

10.1.6. Governmental Authorizations. The Surviving Corporation has all necessary licenses, franchises, permits, and other governmental authorizations and such are valid and sufficient for all businesses presently carried on by it.

 

ARTICLE 11.

 

CONDUCT OF BUSINESS PENDING THE MERGER

 

11.1. From and after the date of this Agreement and prior to the effective time of the Merger, no Constituent Corporation will, without the prior written consent of the other Constituent Corporation, (i) amend its Certificate of Incorporation or Bylaws, except as may be necessary to enable it to carry out the provisions of this Agreement, (ii) engage in any material activity or transaction or incur any material obligation (by contract or otherwise), except in the ordinary course of business, (iii) issue rights or options to purchase or subscribe to any shares of its capital stock or subdivide or otherwise change any such shares, (iv) issue or sell any shares of its common stock or securities convertible into shares of its common stock, or (v) declare or pay any dividends on or make any distributions in respect of any shares of its common stock.

 

ARTICLE 12.

 

CONDITIONS PRECEDENT;

TERMINATION; GENERAL PROVISIONS

 

12.1. Conditions Precedent to PCI’s Obligation. The obligation of PCI to effect the Merger shall be subject to the following conditions, which may be waived in writing by PCI:

 

12.1.1. The representations and warranties of the Constituent Corporations herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; the other Constituent Corporations shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by them prior to the effective time of the Merger.

 

12.1.2. No material change in the corporate status, businesses, operations, or financial condition of the other Constituent Corporation shall have occurred since the date of the financial statements provided (whether or not covered by insurance), other than changes in the ordinary course of business, none of which has been materially adverse in relation to the Constituent Corporations, taken as a whole, and no other event or condition of any character shall have

 

 

EXHIBIT “A”

 

 

 

 

 

8


 

occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations, or financial condition of the Constituent Corporations, taken as a whole.

 

12.2. Conditions Precedent to ClubCorp’s Obligation. The obligation of ClubCorp to effect the Merger shall be subject to the following conditions, which may be waived in writing by ClubCorp:

 

12.2.1. The representations and warranties of the other Constituent Corporation herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; the other Constituent Corporation shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the effective time of the Merger.

 

12.2.2. No material change in the corporate status, businesses, operations, or financial condition of the other Constituent Corporation shall have occurred since the date of the financial statements provided (whether or not covered by insurance), other than changes in the ordinary course of business, none of which has been materially adverse in relation to the other Constituent Corporation, taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations, or financial condition of the other Constituent Corporation, taken as a whole.

 

12.3. Termination and Abandonment. Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and abandoned at any time before the effective time of the Merger, whether before or after adoption or approval of this Agreement under any one or more of the following circumstances:

 

12.3.1. By the mutual consent of the Board of Directors of the Constituent Corporations, respectively;

 

12.3.2. By PCI, if prior to the effective time of the Merger, the conditions set forth in Section 12.2 shall not have been met.

 

12.3.3. By ClubCorp if, prior to the effective time of the Merger, the conditions set forth in Section 12.1 shall not have been met.

 

Upon any such termination and abandonment, no party shall have any liability or obligation hereunder to the other parties.

 

 

EXHIBIT “A”

 

 

 

 

 

9


 

12.4. Amendments. Any of the terms or conditions of this Agreement may be modified or waived at any time before the effective time of the Merger by the party, which is, or the shareholders of which are, entitled to the benefit thereof upon the authority of the Board of Directors of such party, provided, that any such modification or waiver shall, in the judgment of the party making it, not affect substantially or materially and adversely the benefits to such party or its shareholders intended under this Agreement.

 

IN WITNESS WHEREOF, this Agreement has been signed by the duly authorized officers of each of the Constituent Corporations.

 

 

 

PCI

 

 

 

 

 

 

 

 

 

Attest:

 

Private Clubs International, Inc.

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Robert H. Dedman, Jr.

 

Terry A. Taylor

 

Robert H. Dedman, Jr.

 

Secretary

 

President

 

 

 

 

 

 

 

 

 

CLUBCORP

 

 

 

 

 

 

 

 

 

Attest:

 

ClubCorp — Asia

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Robert H. Dedman, Jr.

 

Terry A. Taylor

 

Robert H. Dedman, Jr.

 

Secretary

 

President

 

 

 

STATE OF TEXAS

}

 

 

}

 

COUNTY OF DALLAS

}

 

 

BEFORE ME, the undersigned authority, on this day personally appeared Robert H. Dedman, Jr., President of Private Clubs International, Inc., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

 

EXHIBIT “A”

 

 

 

 

 

10

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 23 day of December, 1994.

 

 

 

 

 

/s/ Vicki Wallace

 

 

 

Notary Public, State of Texas

[Notary Public Stamp]

 

 

 

 

 

 

/s/ Vicki Wallace

 

 

 

(Typed or Printed Name of Notary)

 

 

 

 

 

 

 

My Commission Expires:

 

 

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Private Clubs International, Inc., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 21st day of December, 1994.

 

 

 

 

 

/s/ Julie H. Green

 

 

 

Notary Public, State of Texas

[Notary Public Stamp]

 

 

 

 

 

 

/s/ Julie H. Green

 

 

 

(Typed or Printed Name of Notary)

 

 

 

 

 

 

 

My Commission Expires:

11/24/96

 

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Robert H. Dedman, Jr., President of ClubCorp - Asia a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

 

EXHIBIT “A”

 

 

11


 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 23 day of December, 1994.

 

 

 

 

 

/s/ Vicki Wallace

 

 

 

Notary Public, State of Texas

[Notary Public Stamp]

 

 

 

 

 

 

/s/ Vicki Wallace

 

 

 

(Typed or Printed Name of Notary)

 

 

 

 

 

 

 

My Commission Expires:

 

 

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of ClubCorp - Asia, a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 21st day of December, 1994.

 

 

 

 

 

 

 

 

/s/ Julie H. Green

 

 

 

Notary Public, State of Texas

[Notary Public Stamp]

 

 

 

 

 

 

/s/ Julie H. Green

 

 

 

(Typed or Printed Name of Notary)

 

 

 

 

 

 

 

My Commission Expires:

11/24/96

 

 

EXHIBIT “A”

 

 

12


 

WAVIER UNDER REVISED NEVADA STATUTES $78.457.3

 

WHEREAS, the Board of Directors of ClubCorp - Asia, the sole shareholder of Private Clubs International, Inc. has adopted a Plan and Agreement of Merger under the terms of which Private Clubs International, Inc. is to be merged into ClubCorp - Asia; and

 

WHEREAS, Nevada Revised Statutes $78.457.3 provides that ClubCorp - Asia, as the parent corporation of Private Clubs International, Inc. is to mail a copy or summary of the plan of merger to each shareholder who does not waive the mailing requirement in writing.

 

NOW, THEREFORE, ClubCorp - Asia, the sole shareholder of Private Clubs International, Inc. does hereby waive in writing the right to receive a copy or summary of the plan of merger.

 

Effective as of December 1, 1994.

 

 

 

 

 

CLUBCORP - ASIA

 

 

 

 

 

 

 

 

 

 

 

/s/ Terry A. Taylor

 

 

 

Terry A. Taylor
Secretary

 

 

 

 

 

 

 

 

RECEIVED

 

 

 

/s/ [ILLEGIBLE]

 

 

 

DEC 29 1994

 

 

 

 

 

 

 

Secretary of State

 


 EX-3.25(B) 51 a2202241zex-3_25b.htm EX-3.25(B)

Exhibit 3.25(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CLUBCORP - ASIA

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Nevada, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting, signed in accordance with applicable law, shall be given that shall state the place, if any, date and hour of the meeting, the means of electronic communications, if any, by which stockholders and proxies shall be deemed to be present in person and vote, and the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation, as amended, or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting: Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but, except as otherwise provided in this section 1.7, no such proxy shall be voted or acted upon after six months from its creation, unless the proxy provides for a longer period which may not exceed seven years from its creation. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, such as the appointment as proxy of a pledgee, a person who purchased or agreed to purchase the shares, a creditor of the corporation who extended it credit under terms requiring the appointment, an employee of the corporation whose employment contract requires the appointment or a party to a voting agreement created pursuant to subsection 3 of Nevada Revised Statutes 78.365. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the

 

2


 

rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the Board of Directors may fix a new record date for the adjourned meeting. The Board of Directors must fix a new record date if the meeting is adjourned to a date more than 60 days later than the date set for the original meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at last ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that

 

3


 

the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Nevada, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. To the extent permitted by applicable law, the corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of

 

4


 

proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, to the extent permitted by applicable law, the following; (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Nevada and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Nevada whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice

 

6


 

Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7


 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Unless the Board of Director appoints alternate members, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8


 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office: Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. All officers must be natural persons. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents: Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

10


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, to the extent permitted by applicable law, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may, to the extent permitted by applicable law, file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexciusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles

 

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of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.26(A) 52 a2202241zex-3_26a.htm EX-3.26(A)

Exhibit 3.26(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP AIRWAYS GOLF, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Airways Golf, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007.  This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Airways Golf, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Airways Municipal Golf Course, in the City of Fresno, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.26(B) 53 a2202241zex-3_26b.htm EX-3.26(B)

Exhibit 3.26(b)

 

BY-LAWS

 

OF

 

CLUBCORP AIRWAYS GOLF, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring m the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member to the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.27(A) 54 a2202241zex-3_27a.htm EX-3.27(A)

Exhibit 3.27(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP ALISO VIEJO HOLDING CORP.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Aliso Viejo Holding Corp. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007.  This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Aliso Viejo Holding Corp.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own ownership interests and act as partner in the Aliso Viejo Golf Club Joint Venture (the “Property”) and to operate or cause the Aliso Viejo Golf Club, located in the City of Aliso Viejo, State of California, to be operated.

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 


 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

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FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.27(B) 55 a2202241zex-3_27b.htm EX-3.27(B)

Exhibit 3.27(b)

 

BY-LAWS

 

OF

 

CLUBCORP ALISO VIEJO HOLDING CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

10


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

12


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.28(A) 56 a2202241zex-3_28a.htm EX-3.28(A)

Exhibit 3.28(a)

 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

MAY 07 1996

3923-94

CERTIFICATE OF AMENDENT
OF
ARTICLES OF INCORPORATION
OF
CLUB CORPORATION OF AMERICA (CHINA)

 

DEAN HELLER SECRETARY OF STATE

 

 

 

 

 

/s/ DEAN HELLER

 

 

 

We the undersigned as President and Secretary of Club Corporation of America (China) do hereby certify:

 

That the Board of Directors of said corporation by statement of unanimous consent dated January 11, 1996, adopted a resolution to amend the original articles as follows:

 

Article I is hereby amended to read as follows:

 

“The name of this corporation is: ClubCorp Asia Investments Inc.”

 

Article III is hereby amended to read as follows:

 

“The nature of the business and objects and purposes proposed to be transacted, promoted or carried on by the corporation are to engage in any lawful activity, including but not limited to investments and management in all of Asia.”

 

The number of shares of the corporation outstanding and entitled to vote on an amendment to the Articles of Incorporation is 1,000; that the said change and amendment has been consented to and approved by a majority vote of the stockholders holding at least a majority of each class of stock outstanding and entitled to vote thereon.

 

Dated January 18, 1996

 

 

 

 

CLUB CORPORATION OF AMERICA (CHINA)

 

 

 

 

 

 

 

 

 

 

By

/s/ Randel T. Norris

 

 

 

Randel T. Norris, President

 

 

 

 

 

 

 

By

/s/ Terry A. Taylor

 

 

 

Terry A. Taylor, Secretary

 

1


 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Randel T. Norris, President of CLUB CORPORATION OF AMERICA (CHINA), who acknowleded that he executed the above instrument.

 

 

 

/s/ Julie H. Green

[Notary Public Stamp]

Notary Public in and for The State of Texas

 

 

 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Terry A. Taylor, Secretary of CLUB CORPORATION OF AMERICA (CHINA), who acknowleded that he executed the above instrument.

 

 

[Notary Public Stamp]

/s/ Julie H. Green

 

Notary Public in and for The State of Texas

 

2


 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

MAY 14 1994

CHERYL A. LAU SECRETARY OF STATE

ARTICLES OF INCORPORATION

 

 

OF

 

/s/ CHERYL A. LAU

 

 

No. 3923-94

CLUB CORPORATION OF AMERICA (CHINA)

 

 

I, the undersigned, for the purpose of forming a corporation under and pursuant to the laws of the State of Nevada, do hereby certify that:

 

ARTICLE I

 

The name of this corporation is Club Corporation of America (China).

 

ARTICLE II

 

The address of its initial registered office is One East First Street, Washoe County, Nevada 89501, and the name of its initial registered agent at such address is The Corporation Trust Company of Nevada.

 

Offices for the transaction of any business of this corporation, and where meetings of the Board of Directors and of the stockholders may be held, may be established and maintained in any other part of the State of Nevada, or in any other state, territory, or possession of the United States of America, or in any foreign country.

 

ARTICLE III

 

The nature of the business and objects and purposes proposed to be transacted, promoted, or carried on by the corporation are:

 

(1) The corporation is organized for the development and operation of a prestigious private club and an athletic club to be situated on the property known as “Capital Mansion” located in Beijing, People’s Republic of China.

 

(2) The corporation is organized for the following general purposes:

 

To develop a membership program planned to secure the highest quality membership at the earliest date.

 

To develop an operational program planned to ensure the operations of a prestigious Club to the highest international standards.

 

1


 

To develop a special operational and membership program for the Athletic Club Premises separate from the Operational and Membership programs for the City Club Premises.

 

ARTICLE IV

 

The total authorized capital stock of the corporation shall consist of one million (1,000,000) shares, with a par value of One Cent ($,01) per share, all of which shall be entitled to voting power.

 

ARTICLE V

 

The members of the governing board of the corporation shall be styled Directors, and the member thereof at the inception of this corporation shall be three (3) or more. The number of Directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of the corporation and the statutes of the State of Nevada. Directors need not be shareholders, but shall be full age and at least one shall be a citizen of the United States. The names and post office addresses of the first Board of Directors, which shall consist of three (3) persons, and who shall hold office until their successors are duly elected and qualified are as follows:

 

Murry E. Page

15770 Dallas Parkway,
5th Floor
Dallas, Texas 75248

 

 

Randolph D. Addison

15770 Dallas Parkway,
5th Floor
Dallas, Texas 75248

 

 

Col S. Raifer

15770 Dallas Parkway,
5th Floor
Dallas, Texas 75248

 

ARTICLE VI

 

The capital stock of the corporation, after the amount of the subscription price has been paid in money, property, or services, as the Directors shall determine, shall not be subject to assessment to pay the debts of the corporation, nor for any other purpose, and no stock issued as fully paid up shall over be assessable or assessed, and the Articles of Incorporation shall not be amended in this particular.

 

2

 

ARTICLE VII

 

This corporation shall have perpetual existence.

 

ARTICLE VIII

 

The name and address of the incorporator signing these Articles of Incorporation is as follows:

 

Linda Blanton-Myers

15770 Dallas Parkway,
5th Floor
Dallas, Texas 75248

 

IN WITNESS whereof, the undersigned incorporator has executed these Articles of Incorporation this 14th day of March, 1994.

 

 

 

 

 

 

/s/ Linda Blanton-Myers

 

 

Linda Blanton-Myers

 

 

RECEIVED


MAR 14 1994

 

 

/s/ [ILLEGIBLE]

 

SECRETARY OF STATE

 

3


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared in Linda Blanton-Myers, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein [ILLEGIBLE].

 

GIVEN UNDER [ILLEGIBLE] AND SEAL OF OFFICE this the [ILLEGIBLE] day of March, 1994.

 

 

 

 

[Notary Public Stamp]

 

/s/ Linda M. McGuire

 

 

Notary Public, State of Texas

 

4


 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

MAR 14 1994

CHERYL A. LAU SECRETARY OF STATE

 

 

 

 

 

/s/ CHERYL A. LAU

 

 

No. 3923-94

 

 

 

CERTIFICATE OF ACCEPTANCE OF APPOINTMENT

 

BY RESIDENT AGENT

 

The corporation Trust Company of Nevada hereby accepts the appointment as Resident Agent of

 

CLUB CORPORATION OF AMERICA (CHINA)

 

The Corporation Trust Company of Nevada

 

 

 

 

 

Resident Agent

 

 

 

 

 

 

 

 

 

 

 

BY

/s/ M. E. Jones

 

Date 3-14-94

 

 

M. E. Jones
Assistant Secretary

 

 

 


 EX-3.28(B) 57 a2202241zex-3_28b.htm EX-3.28(B)

Exhibit 3.28(b)

 

BYLAWS FOR THE REGULATION, EXCEPT AS

OTHERWISE PROVIDED BY STATUTE OR ITS

ARTICLES OF INCORPORATION, OF

CLUB CORPORATION OF AMERICA (CHINA)

 

ARTICLE I

 

OFFICES

 

Section 1.  Principal Office.  The corporation will maintain offices for the transaction of business of the corporation at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

Section 2.  Other Offices.  Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

ARTICLE II

 

MEETINGS OF SHAREHOLDERS

 

Section 1.  Place of Meetings.  All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or (ii) consented to by the written consent of all shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

Section 2.  Annual Meetings.  The annual meeting of shareholders shall be on the 2nd Monday of March in each year at 10:00 a.m.; provided, however, that should said day fall upon a legal holiday, then any such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such meetings. Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the power of the shareholders.

 

Section 3.  Special Meetings.  Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the

 

Bylaws — A4167.2.33.1A

 

1


 

officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

Section 4.  Notice of Meeting.  Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of shares, securities, or any other consideration (other than money) in the process of winding up.

 

Section 5.  Consent of Absentees.  The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

Section 6.  Quorum.  The presence in person or by proxy of persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

Section 7.  Voting.  Unless a record date for voting purposes be fixed, as hereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the

 

Bylaws — A4167.2.33.1A

 

2


 

Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

Section 8.  Proxies.  Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

Section 9.  Adjourned Meetings and Notice Thereof.  Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

Section 10.  Action Without Meeting.  Any action which may be taken at a meeting of the shareholders may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting and filed with the Secretary of the corporation; provided, however, a meeting shall be held for dissolution, transfer of all or substantially all of the assets of the corporation, or for merger or consolidation of the corporation with other corporations, if same is required under applicable law.

 

ARTICLE III

 

DIRECTORS

 

Section 1.  Powers.  Subject to limitations imposed by law or by the Articles of incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to

 

Bylaws — A4167.2.33.1A

 

3


 

the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

Section 2.  Number of Directors.  The authorized number of Directors of the corporation shall be not less than one nor more than five until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

Section 3.  Election and Term of Office.  The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

Section 4.  Vacancies.  Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of his term of office.

 

Section 5.  Quorum.  A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly

 

Bylaws — A4167.2.33.1A

 

4


 

held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

Section 6.  Place of Directors’ Meetings.  Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

Section 7.  Regular Meetings.  Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

Section 8.  Special Meetings.  Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each Director or sent to each Director by mail or other form of written communication, charges prepaid addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or telegraphed shall be deposited in the United States mail or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting.

 

Section 9.  Notice of Adjournment.  Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

Section 10.  Waiver of Notice; Consent to Meeting.  The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

Bylaws — A4167.2.33.1A

 

5


 

Section 11.  Adjournment.  A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

Section 12.  Action Without Meeting.  Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

Section 13.  Fees and Compensation.  Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

Section 14.  Indemnification of Directors, Officers and Employees.

 

A.  In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitable merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in

 

Bylaws — A4167.2.33.1A

 

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the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

B.  Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a present or former Director, officer or employee of the corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

C.  The provisions of this Section shall apply to the estate, executor, administrator, heirs, legatees or devisees of any such present or former Director, officer or employee of the corporation.

 

D.  The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to indemnification hereunder, provided the premiums on such combined policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV

 

OFFICERS

 

Section 1.  Officers.  The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

Section 2.  Other Officers.  The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant

 

Bylaws — A4167.2.33.1A

 

7


 

Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

Section 3.  Removal and Resignation.  Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4.  Vacancies.  A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

Section 5.  Chairman of the Board.  The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

Section 6.  President.  Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, at all meetings of the Board of Directors. He shall be an ex officio member of all the standing committees, including the Executive Committee, if any, and shall have the general powers and duties of management usually vested in the office of the President of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors.

 

Section 7.  Vice President.  In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or, if not ranked, the vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and

 

Bylaws — A4167.2.33.1A

 

8


 

perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors.

 

Section 8.  Secretary.  The Secretary shall Keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of the corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 9.  Treasurer.  The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Bylaws — A4167.2.33.1A

 

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ARTICLE V

 

MISCELLANEOUS

 

Section 1.  Record Date and Closing Stock Books.  The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

Section 2.  Inspection of Corporate Records.  The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

Every Director shall have the right at any reasonable time to inspect the books, records, documents of every kind, and the physical properties of the corporation and of its subsidiary corporations, domestic or foreign.

 

Section 3.  Certificates for Shares.  A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit

 

Bylaws — A4167.2.33.1A

 

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the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

Section 4.  Transfer of Stock.  The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

Section 5.  Lost Certificates.  New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

Section 6.  Corporate Seal.  A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

Section 7.  Contracts — Execution of Documents.  The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

Bylaws — A4167.2.33.1A

 

11


 

All Checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

Section 8.  Representation of Shares of Other Corporations.  The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 9.  Inspection of Bylaws.  The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VI

 

AMENDMENTS

 

Section 1.  Power of Shareholders.  New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

Section 2.  Power of Directors.  Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

Bylaws — A4167.2.33.1A

 

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 EX-3.29(A) 58 a2202241zex-3_29a.htm EX-3.29(A)

Exhibit 3.29(a)

 

 

STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/29/2001
010155189 - 3374728

 

CERTIFICATE OF INCORPORATION
OF
CLUBCORP AVEN HOLDINGS, INC.

 

FIRST. The name of the corporation is ClubCorp Aven Holdings, Inc.

 

SECOND. The address of the corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

FOURTH. The total number of shares of common stock which the corporation shall have authority to issue is 1,000 and each share shall have the par value of $1.00 per share. No preemptive rights shall be granted.

 

FIFTH. The name and mailing address of the incorporator is Thomas T. Henslee, 3030 LBJ Freeway, Suite 840, Dallas, Texas 75234.

 

SIXTH. The board of directors of the corporation is expressly authorized to adopt, amend or repeal bylaws of the corporation.

 

SEVENTH. Elections of directors need not be by written ballot except and to the extent provided in the bylaws of the corporation.

 

EIGHTH. The number of directors of the corporation shall be fixed from time to time pursuant to the bylaws of the corporation.

 

NINTH. A director of office of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law as currently in effect or as the same may hereafter be amended. No amendment, modification or repeal of this article NINTH shall adversely affect any right or protection of a director or officer that exists at the time of such amendment, modification or repeal.

 

IN WITNESS WHEREOF, I have signed this certificate of incorporation this 29th day of March, 2001.

 

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee, Incorporator

 


 EX-3.29(B) 59 a2202241zex-3_29b.htm EX-3.29(B)

Exhibit 3.29(b)

 

BYLAWS OF

 

CLUBCORP AVEN HOLDINGS, INC.

 

ARTICLE I.

 

OFFICES

 

A.            Principal Office

 

The principal office of the corporation is located at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

B.            Other Offices

 

Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

C.            Registered Office

 

The Registered office of the corporation is located at 2711 Centerville Road, Suite 410, Wilmington, Delaware.

 

D.            Registered Agent

 

The name of the registered agent of the corporation at such address is The United States Corporation Company.

 

ARTICLE II.

 

SHAREHOLDERS MEETINGS

 

A.            Place of Meetings

 

All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or pursuant to authority hereinafter granted to the Board, or (ii) by the written consent of all persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (ill) in the city of the residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

CORPORATE BYLAWS

 

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B.            Time of Annual Meeting — Business Transacted

 

The annual meeting shall be held on the date and the time fixed, from time to time, by the directors, provided that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted that is within the powers of the shareholders. A special meeting shall be held on the date and at the time fixed by the directors.

 

C.            Special Meetings

 

Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

D.            Notice of Meetings

 

Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of share, securities, or any other consideration (other than money) in the process of winding up.

 

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E.             Consent of Absentees

 

The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though it had been held at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

F.             Quorum

 

The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting constitutes a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

G.            Voting

 

Unless a record date for voting purposes be fixed, as thereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

H.            Proxies

 

Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

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I.              Adjourned Meetings and Notice Thereof

 

Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

J.             Action Without Meeting

 

Any action that, under any provision of the Florida Business Corporation Act, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized in writing, signed by all of the persons who would be entitled to vote on that action at a meeting, and filed with the Secretary of the corporation. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the corporation.

 

ARTICLE III.

 

DIRECTORS

 

A.            Directors Defined

 

“Directors,” when used in relation to any power or duty requiring collective action, means “Board of Directors.”

 

B.            Powers

 

Subject to limitation imposed by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

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C.            Number of Directors

 

The authorized number of Directors of the corporation shall be not less than one (1) nor more than five (5) until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

D.            Election and Term of Office

 

The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

E.             Vacancies

 

Vacancies on the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of this term of office.

 

F.             Quorum

 

A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a

 

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quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

G.            Place of Meetings

 

Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

H.            Regular Meetings

 

Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

I.              Call of Special Meeting

 

Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of holding of the meeting.

 

J.             Notice of Adjournment

 

Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

K.            Waiver of Notice: Consent to Meeting

 

The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice of a quorum is present and if, either before

 

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or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

L.            Adjournment

 

A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

M.           Actions without Meetings

 

Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

N.            Fees and Compensation

 

Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

O.            Indemnification of Directors, Officers and Employees

 

1.      In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of this alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitably merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the

 

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defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

2.      Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interest of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

3.      The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV.

 

OFFICERS

 

A.            Officers

 

The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

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B.            Other Officers

 

The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

C.            Removal and Resignation

 

Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance or such resignation shall not be necessary to make it effective.

 

D.            Vacancies

 

A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

E.             Chairman of the Board

 

The Chairman of the Board, if there shall be such officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

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F.             President

 

Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Within this authority and in the course of his duties the President shall be empowered to preside at all meetings of the shareholders and in the absence of the Chairman of the Board, or, if there is none, at all meetings of the Board of Directors, and shall be ex officio a member of all the standing committees, including the Executive Committee, if any.

 

G.            Vice President

 

In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws.

 

H.            Secretary

 

The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

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I.              Treasurer

 

The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V.

 

EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

A.            Authority for Execution of Instruments

 

The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and that authority may be general or confined to specific instances, and, unless so authorized, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.

 

B.            Execution of Instruments

 

Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, other corporate instruments or documents, and certificates of shares of stock owned by the corporation shall be executed, signed, or endorsed by the President or any Vice President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal affixed thereto.

 

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C.            Bank Accounts and Deposits

 

1.      All funds of the corporation shall be deposited from time to time to the credit of the corporation with such banks, trust companies, or other depositaries as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the corporation to whom that power may be delegated from time to time by the Board of Directors.

 

2.      Endorsements for deposit to the credit of the corporation in any of its duly authorized depositaries may be made without countersignatures by the President or any Vice President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the corporation to whom the Board of Directors, by resolution, shall have delegated that power, or by hand stamped impression in the name of the corporation.

 

3.      All checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors.

 

ARTICLE VI.

 

MISCELLANEOUS

 

A.            Record Date and Closing Stock Books

 

The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any vote at any meeting of shareholders or entitled to notice of any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

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B.            Inspection of Corporate Records

 

The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

C.            Certificates for Shares

 

A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

D.            Transfer of Stock

 

The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

E.             Lost Certificates

 

New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have

 

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been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

F.             Corporate Seal

 

A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

G.            Contracts—Execution of Documents

 

The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or top pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

H.            Representation of Shares of Other Corporations

 

The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized to do so by proxy or power of attorney duly executed by said officers.

 

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 EX-3.30(A) 60 a2202241zex-3_30a.htm EX-3.30(A)

Exhibit 3.30(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP BRAEMAR COUNTRY CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Braemar Country Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Braemar Country Club, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Braemar Country Club, in the City of Tarzana, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.30(B) 61 a2202241zex-3_30b.htm EX-3.30(B)

Exhibit 3.30(b)

 

BY-LAWS

 

OF

 

CLUBCORP BRAEMAR COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.              Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.              Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.              Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.              Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.              Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.              Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.              Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.              Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.              List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.        Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.        Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.        Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.              Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.              Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.              Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.              Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.              Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.              Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.              Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.              Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1.              Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.              Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.              Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.              Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.              Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.              Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.              Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.              Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.              Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.              Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.              Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.              Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.              Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.              Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.              Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.              Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.              Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.              Waiver of Notice of Meetings of Stockholders. Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.              Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.              Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.31(A) 62 a2202241zex-3_31a.htm EX-3.31(A)

Exhibit 3.31(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP BUNKER HILL CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Bunker Hill Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Bunker Hill Club, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Los Angeles, State of California, including the sports or business club commonly known as City Club on Bunker Hill (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 


 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

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FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.31(B) 63 a2202241zex-3_31b.htm EX-3.31(B)

Exhibit 3.31(b)

 

BY-LAWS

 

OF

 

CLUBCORP BUNKER HILL CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.              Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.              Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.              Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.              Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.              Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.              Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.              Voting: Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.              Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.              List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.        Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.        Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.        Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.              Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.              Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.              Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.              Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.              Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.              Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.              Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.              Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.              Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.              Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.              Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.              Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.              Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.              Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.              Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.              Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.              Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.              Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.              Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.              Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.              Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.              Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.              Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.              Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.              Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.              Waiver of Notice of Meetings of Stockholders. Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.              Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.              Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.32(A) 64 a2202241zex-3_32a.htm EX-3.32(A)

Exhibit 3.32(a)

 

 

STATE OF DELAWARE

 

SECRETARY OF STATE

 

DIVISION OF CORPORATIONS

 

FILED 09:00 AM 03/29/2001

 

010155195 - 3374732

 

CERTIFICATE OF INCORPORATION
OF
CLUBCORP BUYING SERVICES, INC.

 

FIRST.  The name of the corporation is ClubCorp Buying Services, Inc.

 

SECOND.  The address of the corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

FOURTH.  The total number of shares of common stock which the corporation shall have authority to issue is 1,000 and each share shall have the par value of $1.00 per share. No preemptive rights shall be granted.

 

FIFTH.  The name and mailing address of the incorporator is Thomas T. Henslee, 3030 LBJ Freeway, Suite 840, Dallas, Texas 75234.

 

SIXTH.  The board of directors of the corporation is expressly authorized to adopt, amend or repeal bylaws of the corporation.

 

SEVENTH.  Elections of directors need not be by written ballot except and to the extent provided in the bylaws of the corporation.

 

EIGHTH.  The number of directors of the corporation shall be fixed from time to time pursuant to the bylaws of the corporation.

 

NINTH.  A director of office of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law as currently in effect or as the same may hereafter be amended. No amendment, modification or repeal of this article NINTH shall adversely affect any right or protection of a director or officer that exists at the time of such amendment, modification or repeal.

 

IN WITNESS WHEREOF, I have signed this certificate of incorporation this 29th day of March, 2001.

 

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee, Incorporator

 


 EX-3.32(B) 65 a2202241zex-3_32b.htm EX-3.32(B)

Exhibit 3.32(b)

 

BYLAWS OF

 

CLUBCORP BUYING SERVICES, INC.

 

ARTICLE I.

 

OFFICES

 

A.                       Principal Office

 

The principal office of the corporation is located at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

B.                       Other Offices

 

Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

C.                       Registered Office

 

The Registered office of the corporation is located at 2711 Centerville Road, Suite 410, Wilmington, Delaware.

 

D.                       Registered Agent

 

The name of the registered agent of the corporation at such address is The United States Corporation Company.

 

ARTICLE II.

 

SHAREHOLDERS MEETINGS

 

A.                       Place of Meetings

 

All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or pursuant to authority hereinafter granted to the Board, or (ii) by the written consent of all persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of the residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

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B.                       Time of Annual Meeting — Business Transacted

 

The annual meeting shall be held on the date and the time fixed, from time to time, by the directors, provided that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted that is within the powers of the shareholders. A special meeting shall be held on the date and at the time fixed by the directors.

 

C.                       Special Meetings

 

Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

D.                       Notice of Meetings

 

Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of share, securities, or any other consideration (other than money) in the process of winding up.

 

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E.                         Consent of Absentees

 

The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though it had been held at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

F.                         Quorum

 

The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting constitutes a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

G.                       Voting

 

Unless a record date for voting purposes be fixed, as thereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

H.                       Proxies

 

Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

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I.                            Adjourned Meetings and Notice Thereof

 

Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

J.                         Action Without Meeting

 

Any action that, under any provision of the Florida Business Corporation Act, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized in writing, signed by all of the persons who would be entitled to vote on that action at a meeting, and filed with the Secretary of the corporation. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the corporation.

 

ARTICLE III.

 

DIRECTORS

 

A.                       Directors Defined

 

“Directors,” when used in relation to any power or duty requiring collective action, means “Board of Directors.”

 

B.                       Powers

 

Subject to limitation imposed by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

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C.                       Number of Directors

 

The authorized number of Directors of the corporation shall be not less than one (1) nor more than five (5) until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

D.                       Election and Term of Office

 

The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

E.                         Vacancies

 

Vacancies on the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of this term of office.

 

F.                         Quorum

 

A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a

 

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quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

G.                       Place of Meetings

 

Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

H.                       Regular Meetings

 

Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

I.                            Call of Special Meeting

 

Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of holding of the meeting.

 

J.                         Notice of Adjournment

 

Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

K.                       Waiver of Notice: Consent to Meeting

 

The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice of a quorum is present and if, either before

 

6


 

or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

L.                        Adjournment

 

A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

M.                     Actions without Meetings

 

Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

N.                       Fees and Compensation

 

Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

O.                      Indemnification of Directors, Officers and Employees

 

1.                  In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of this alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitably merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the

 

7


 

defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

2.                  Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interest of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

3.                  The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV.

 

OFFICERS

 

A.                       Officers

 

The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

8

 

B.                       Other Officers

 

The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

C.                       Removal and Resignation

 

Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance or such resignation shall not be necessary to make it effective.

 

D.                       Vacancies

 

A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

E.                         Chairman of the Board

 

The Chairman of the Board, if there shall be such officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

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F.                         President

 

Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Within this authority and in the course of his duties the President shall be empowered to preside at all meetings of the shareholders and in the absence of the Chairman of the Board, or, if there is none, at all meetings of the Board of Directors, and shall be ex officio a member of all the standing committees, including the Executive Committee, if any.

 

G.                       Vice President

 

In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws.

 

H.                       Secretary

 

The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

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I.                            Treasurer

 

The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V.

 

EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

A.                       Authority for Execution of Instruments

 

The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and that authority may be general or confined to specific instances, and, unless so authorized, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.

 

B.                       Execution of Instruments

 

Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, other corporate instruments or documents, and certificates of shares of stock owned by the corporation shall be-executed, signed, or endorsed by the President or any Vice President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal affixed thereto.

 

11


 

C.                       Bank Accounts and Deposits

 

1.                  All funds of the corporation shall be deposited from time to time to the credit of the corporation with such banks, trust companies, or other depositaries as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the corporation to whom that power may be delegated from time to time by the Board of Directors.

 

2.                  Endorsements for deposit to the credit of the corporation in any of its duly authorized depositaries may be made without countersignatures by the President or any Vice President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the corporation to whom the Board of Directors, by resolution, shall have delegated that power, or by hand stamped impression in the name of the corporation.

 

3.                  All checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors.

 

ARTICLE VI.

 

MISCELLANEOUS

 

A.                       Record Date and Closing Stock Books

 

The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any vote at any meeting of shareholders or entitled to notice of any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

12


 

B.                       Inspection of Corporate Records

 

The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

C.                       Certificates for Shares

 

A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

D.                       Transfer of Stock

 

The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

E.                         Lost Certificates

 

New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have

 

13


 

been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

F.                         Corporate Seal

 

A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

G.                       Contracts—Execution of Documents

 

The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or top pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

H.                       Representation of Shares of Other Corporations

 

The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized to do so by proxy or power of attorney duly executed by said officers.

 

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I.                            Inspection of Bylaws

 

The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VII.

 

AMENDMENTS

 

A.                       Powers of Shareholders

 

New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

B.                       Power of Directors

 

Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

ACKNOWLEDGED AND ADOPTED effective March 29, 2001.

 

 

 

/s/ James M. Hinckley

 

James M. Hinckley, Director

 

 

 

 

 

/s/ Murray S. Siegel

 

Murray S. Siegel, Director

 

 

 

 

 

/s/ William Walden

 

William Walden, Director

 

15


 EX-3.33(A) 66 a2202241zex-3_33a.htm EX-3.33(A)

Exhibit 3.33(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP CANYON CREST COUNTRY CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Canyon Crest Country Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Canyon Crest Country Club, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Canyon Crest Country Club, in the City of Riverside, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies (, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.33(B) 67 a2202241zex-3_33b.htm EX-3.33(B)

Exhibit 3.33(b)

 

BY-LAWS

 

OF

 

CLUBCORP CANYON CREST COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

 

Section 1.5.   Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.   Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.34(A) 68 a2202241zex-3_34a.htm EX-3.34(A)

Exhibit 3.34(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP CENTER CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Center Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Center Club, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Costa Mesa, State of California, including the sports or business club commonly known as Center Club — Costa Mesa (the “Business”).

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 


 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

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FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.34(B) 69 a2202241zex-3_34b.htm EX-3.34(B)

Exhibit 3.34(b)

 

BY-LAWS

 

OF

 

CLUBCORP CENTER CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.              Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.              Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.              Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.              Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.              Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.              Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.              Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.              Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.              List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.        Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.        Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.        Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.              Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.              Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.              Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.              Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.              Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.              Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.              Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.              Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.              Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.              Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.              Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.              Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.              Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.              Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.              Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.              Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.              Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.              Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.              Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.              Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.              Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.              Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.              Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.              Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.              Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.              Waiver of Notice of Meetings of Stockholders. Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.              Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.              Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.35(A) 70 a2202241zex-3_35a.htm EX-3.35(A)

Exhibit 3.35(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP COTO PROPERTY HOLDINGS, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Coto Property Holdings, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Coto Property Holdings, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Coto de Caza Golf & Racquet Club, in the City of Coto de Caza, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.35(B) 71 a2202241zex-3_35b.htm EX-3.35(B)

Exhibit 3.35(b)

 

BY-LAWS

 

OF

 

CLUBCORP COTO PROPERTY HOLDINGS, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates: Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.36(A) 72 a2202241zex-3_36a.htm EX-3.36(A)

Exhibit 3.36(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP CROW CANYON MANAGEMENT CORP.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Crow Canyon Management Corp. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Crow Canyon Management Corp.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Crow Canyon Country Club, in the City of Danville, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.36(B) 73 a2202241zex-3_36b.htm EX-3.36(B)

Exhibit 3.36(b)

 

BY-LAWS

 

OF

 

CLUBCORP CROW CANYON MANAGEMENT CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.     Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.37(A) 74 a2202241zex-3_37a.htm EX-3.37(A)

Exhibit 3.37(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP DESERT FALLS COUNTRY CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Desert Falls Country Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Desert Falls Country Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Desert Falls Country Club, in the City of Palm Desert, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.37(B) 75 a2202241zex-3_37b.htm EX-3.37(B)

Exhibit 3.37(b)

 

BY-LAWS

 

OF

 

CLUBCORP DESERT FALLS COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.     Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.38(A) 76 a2202241zex-3_38a.htm EX-3.38(A)

Exhibit 3.38(a)

 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

DEC 26 1991

CHERYL A. LAU SECRETARY OF STATE

FILING FEE: $125.00 K.K.
RECEIPT #C 31565
ALLISON, MACKENZIE HARTMAN ET. AL.
P.O. BOX 646
CARSON CITY, NEVADA 89702

 

 

/s/ CHERYL A. LAU

 

No.

11923—91

 

 

ARTICLES OF INCORPORATION

 

OF

 

CLUBCORP FINANCIAL MANAGEMENT COMPANY

 

I, the undersigned, for the purpose of forming a corporation under and pursuant to the laws of the State of Nevada, do hereby certify that:

 

ARTICLE I

 

The name of this corporation is ClubCorp Financial Management Company.

 

ARTICLE II

 

The address of its initial registered office is 402 North Division Street, Carson City, Nevada 89703, and the name of its initial registered agent at such address is ANDREW MacKENZIE, ESQ.

 

Offices for the transaction of any business of this corporation, and where meetings of the Board of Directors and of the stockholders may be held, may be established and maintained in any other part of the State of Nevada, or in any other state, territory, or possession of the United States of America, or in any foreign country.

 

ARTICLE III

 

The nature of the business and objects and purposes proposed to be transacted, promoted, or carried on by the corporation are to engage in any lawful activity.

 

ARTICLE IV

 

The total authorized capital stock of the corporation shall consist of one thousand (1,000) shares, with a par value of One Dollar ($1.00) per share, all of which shall be entitled to voting power.

 

ARTICLE V

 

The members of the governing board of the corporation shall be styled Directors, and the number thereof at the inception of this corporation shall be three (3) or more. The number of Directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of the corporation and the statutes of the State of Nevada. Directors need not be shareholders, but shall be full age and at least one shall be a citizen of the United States. The names and post office

 

1


 

addresses of the first Board of Directors, which shall consist of three (3) persons, and who shall hold office until their successors are duly elected and qualified are as follows:

 

Murry E. Page

14651 Dallas Parkway
Suite 700
Dallas, Texas 75240

 

 

Deborah G. Means

14651 Dallas Parkway
Suite 700
Dallas, Texas 75240

 

 

Richard T. Cassidy

14651 Dallas Parkway
Suite 700
Dallas, Texas 75240

 

ARTICLE VI

 

The capital stock of the corporation, after the amount of the subscription price has been paid in money, property, or services, as the Directors shall determine, shall not be subject to assessment to pay the debts of the corporation, nor for any other purpose, and no stock issued as fully paid up shall ever be assessable or assessed, and the Articles of Incorporation shall not be amended in this particular.

 

ARTICLE VII

 

This corporation shall have perpetual existence.

 

ARTICLE VIII

 

The name and address of the incorporator signing these Articles of Incorporation is as follows:

 

Linda L. Blanton

14651 Dallas Parkway
Suite 700
Dallas, Texas 75240

 

IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of Incorporation this 23rd day of December, 1991.

 

 

 

 

/s/ Linda L. Blanton

 

Linda L. Blanton

 

2


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Linda L. Blanton, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 23rd day of December, 1991.

 

 

 

 

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

[Notary Public Stamp]

 

 

RECEIVED

DEC 26 1991

Secretary of State

 

3


 

FILED

 

IN THE OFFICE OF THE

 

SECRETARY OF STATE OF THE

 

STATE OF NEVADA

 

 

 

DEC 26 1991

 

CHERYL A. LAU SECRETARY OF STATE

 

 

 

/s/ Cheryl A. Lau

 

No. 

11923-91

 

 

CERTIFICATE OF ACCEPTANCE OF APPOINTMENT
BY RESIDENT AGENT

 

In the matter of CLUBCORP FINANCIAL MANAGEMENT COMPANY, I, Andrew Mackenzie, with address at 402 North Division Street, Town of Carson City 89702, Independent City, State of Nevada, hereby accept the appointment as Resident Agent of the above-entitled corporation in accordance with NRS 78.090.

 

Furthermore, that the mailing address for the above registered office is: P.O. Box 646, Carson City 89702, State of Nevada. In witness whereof, I have hereunto set my hand this 26th day of December, 1991.

 

 

/s/ Andrew MacKenzie

 

Andrew MacKenzie

 

 

 

 

 

[Illegible]

 

 

 

DEC 26 1991

 

 

 

[Illegible]

 


 

ARTICLES OF MERGER

 

 

 

MERGING

 

 

 

A0105 CORP.

1172-86 M/D

(NV)

 

 

 

AND

 

 

 

CCA CORP.

8577-86

(NV)

 

 

 

INTO

 

 

 

CLUBCORP FINANCIAL MANAGEMENT COMPANY

11923-91

(NV)

 

 

REQUESTED BY:

 

ANDREW MACKENZIE, ESQ.
ALLISON MACKENZIE LAW FIRM
P.O. BOX 646
CARSON CITY, NV 89702

 

FILE NUMBER: 11923-91

 

FILE DATE: 12/31/91

 

FILING FEE: $75.00

 


 

 

FILING FEE: $75.00 DF C32160 EXPEDITE 0E019225

 

ANDREW MACKENZIE, ESQ.

 

ALLISON MACKENZIE LAW FIRM

 

P.O. BOX 646

 

CARSON CITY, NV 89702

FILED

 

IN THE OFFICE OF THE

 

SECRETARY OF STATE OF THE

 

STATE OF NEVADA

 

 

 

DEC 31 1991

 

CHERYL A. LAU SECRETARY OF STATE

 

 

 

/s/ CHERYL A. LAU

 

No.

11923-91

 

 

ARTICLES OF MERGER

 

of

 

A0105 CORP. and CCA CORP.

 

into

 

ClubCorp Financial Management Company

 

Pursuant to the provisions of Nevada Revised Statutes 78.458, the undersigned corporation submits the following Articles of Merger for the purpose of merging A0105 Corp. and CCA Corp. into ClubCorp Financial Management Company:

 

1.     The name and place of incorporation of each constituent corporation and the surviving corporation is as follows:

 

Surviving Corporation:
ClubCorp Financial Management Company
Incorporated under the laws of the State of Nevada

 

Constituent Corporation:
A0105 Corp.
Incorporated under the laws of the State of Nevada

 

Constituent Corporation:
CCA Corp.
Incorporated under the laws of the State of Nevada

 

2.     A Plan and Agreement of Merger, a copy of which is attached as Exhibit “A” and incorporated herein by this reference, has been adopted by the Board of Directors of each corporation that is a party to the merger.

 

3.     The approval of the stockholders of ClubCorp Financial Management Company, the Surviving Corporation, was not required, since pursuant to NRS 78.454:

 

(a)        The articles of incorporation of the surviving corporation will not differ from its articles before the merger; and

 

(b)       Each stockholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights immediately after the merger; and

 

1


 

(c)        The number of voting shares outstanding immediately after the merger will not exceed the total number of voting shares of the surviving corporation outstanding immediately before the merger; and

 

(d)       The number of participating shares outstanding immediately after the merger will not exceed the total number of participating shares outstanding immediately before the merger.

 

4.     The approval of the Plan and Agreement of Merger by the stockholders of A0105 Corp. and CCA Corp. was required, and:

 

(a)        The Plan and Agreement of Merger was approved by the unanimous consent of the shareholder of A0105 Corp.

 

(a)        The Plan and Agreement of Merger was approved by the unanimous consent of the shareholder of CCA Corp.

 

5.     The Articles of Incorporation of ClubCorp Financial Management Company, the Surviving Corporation, were not amended and will not be amended, as a result of the merger.

 

DATED: December 27, 1991

 

 

The Surviving Corporation

 

 

 

ClubCorp Financial Management Company

 

 

 

 

 

By

/s/ John H. Gray

 

 

John H. Gray

 

 

Its President

 

 

 

 

 

 

 

And

/s/ Murry E. Page

 

 

Murry E. Page Its Assistant Secretary

 

2


 

STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, a notary public, on this day personally appeared John H. Gray, President of ClubCorp Financial Management Company, a Nevada corporation, known to me to be the persons whose names are subscribed to the foregoing document and, being by me first duly sworn, declared that the statements contained therein are true and correct and that they executed the Articles of Merger in the capacities stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 27th day of December, 1991.

 

 

 

[Notary Public Stamp]

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, a notary public, on this day personally appeared Murry E. Page, Assistant Secretary of ClubCorp Financial Management Company, a Nevada corporation, known to me to be the persons whose names are subscribed to the foregoing document and, being by me first duly sworn, declared that the statements contained therein are true and correct and that they executed the Articles of Merger in the capacities stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 27th day of December, 1991.

 

 

 

[Notary Public Stamp]

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

 

RECEIVED
11:30
DEC 31 1991

 

 

 

 

 

Secretary of State

 

3


 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
DEC 30 1994

 

DEAN HELLER, SECRETARY OF STATE

 

 

 

No. 

11923-91

 

 

/s/ DEAN HELLER

 

 

ARTICLES OF MERGER
of
AMERICAN CLUB FINANCIAL MANAGEMENT CORP.
(a Texas corporation)
into
CLUBCORP FINANCIAL MANAGEMENT COMPANY
(a Nevada corporation)

 

Pursuant to the provisions of Nevada Revised statutes 78.458, the undersigned corporation submits the following Articles of Merger for the purpose of merging American Club Financial Management Corp. into ClubCorp Financial Management Company:

 

1.     The name and place of incorporation of the constituent corporation and the surviving corporation is as follows:

 

Surviving Corporation:
ClubCorp Financial Management Company
Incorporated under the laws of the State of Nevada

 

Constituent Corporation:
American Club Financial Management Corp.
Incorporated under the laws of the State of Texas

 

2.     A Plan and Agreement of Merger, a copy of which is attached as Exhibit “A” and incorporated herein by this reference, has been adopted by the Board of Directors of each corporation that is a party to the merger.

 

3.     The approval of the stockholders of ClubCorp Financial Management Company, the Surviving Corporation, was not required, since pursuant to NRS 78.454:

 

(a)        The articles of incorporation of the surviving corporation will not differ from its articles before the merger; and

 

(b)       Each stockholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights immediately after the merger; and

 

(c)        The number of voting shares outstanding immediately after the merger will not exceed the total number of voting shares of the surviving corporation outstanding immediately before the merger; and

 

1

 

EXHIBIT “A”

 

PLAN AND AGREEMENT OF MERGER

 

of

 

A0105 Corp. and CCA Corp.

 

into

 

ClubCorp Financial Management Company

 

THIS AGREEMENT, dated as of the 27th day of December, 1991, by and between A0105 Corp. (hereinafter sometimes referred to as “A0105”), CCA Corp. (hereinafter sometimes referred to as “CCA”) and ClubCorp Financial Management Company (hereinafter sometimes referred to as “FMC”). A0105 and CCA are hereinafter sometimes collectively referred to as the “Merged Corporations”, FMC is hereinafter sometimes referred to as the “Surviving Corporation”, and A0105, CCA and FMC are hereinafter sometimes collectively referred to as the “Constituent Corporation.” The agreement of the Constituent Corporations is as follows:

 

W I T N E S S E T H

 

WHEREAS, A0105 is a corporation duly organized and existing under the laws of the State of Nevada, having been incorporated on February 19, 1986, with its registered office being located at One East First Street, Reno, Nevada 89501, and the name of its registered agent being The Corporation Trust Company; and

 

WHEREAS, CCA is a corporation duly organized and existing under the laws of the State of Nevada, having been incorporated on December 8, 1986, with its registered office being located at One East First Street, Reno, Nevada 89501, and the name of its registered agent being The Corporation Trust Company; and

 

WHEREAS, FMC is a corporation duly organized and existing under the laws of the State of Nevada, having been incorporated on December 26, 1991, with its registered office being located at 402 North Division Street, Carson City, Nevada 89703, and the name of its registered agent being Andrew MacKenzie; and

 

WHEREAS, the authorized capital stock of A0105 consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Club Corporation International; and

 

WHEREAS, the authorized capital stock of CCA consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Club Corporation International; and

 

1


 

WHEREAS, the authorized capital stock of FMC consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Club Corporation International; and

 

WHEREAS, the Board of Directors of the Constituent Corporations, respectively, deem it advisable for the general welfare and advantage of the Constituent Corporations and their respective shareholder, Club Corporation International, that the Constituent Corporations merge into a single corporation pursuant to this Agreement, and the Constituent Corporations respectively desire to so merge pursuant to this Agreement and pursuant to the applicable provisions of the laws of the States of Nevada.

 

NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereby agree, in accordance with the applicable provisions of the laws of the State of Nevada that the Constituent Corporations shall be merged into a single corporation, to wit: ClubCorp Financial Management Company, a Nevada corporation, one of the Constituent Corporations, which is not a new corporation, and which shall continue its corporate existence and be the corporation surviving the merger, and the terms and conditions of the merger hereby agreed upon (hereinafter called the “Merger”) which the parties covenant to observe, keep, and perform, and the mode of carrying the same into effect are and shall be as hereafter set forth:

 

ARTICLE 1.

 

EFFECTIVE TIME OF THE MERGER

 

1.1  At the effective time of the Merger, the separate existence of the Merged Corporations shall cease and shall be merged into the Surviving Corporation. Consummation of this Agreement shall de effected on the date on which the Articles of Merger in substantially the form annexed hereto as Exhibit “A” are filed in the office of the Secretary of State of the State of Nevada.

 

ARTICLE 2.

 

GOVERNING LAW;

CERTIFICATE OF INCORPORATION

 

2.1.  The laws which are to govern the Surviving Corporation are the laws of the State of Nevada. The Articles of Incorporation of FMC, shall, at the effective time of the Merger, remain in effect and unchanged thereafter until the same shall be further amended or altered in accordance with the provisions thereof.

 

2


 

ARTICLE 3.

 

BYLAWS

 

3.1.  The bylaws of FMC, shall, at the effective time of the Merger, remain in effect and unchanged thereafter until the same shall be further amended or altered in accordance with the provisions thereof.

 

ARTICLE 4.

 

DIRECTORS AND OFFICERS

 

4.1.  The directors of FMC at the effective time of the Merger shall be the directors of the Surviving Corporation until their respective successors are duly elected and qualified. Subject to the authority of the Board of Directors, as provided by law and the bylaws of the Surviving Corporation, the officers of FMC at the effective time of the Merger shall be the officers of the Surviving Corporation.

 

ARTICLE 5.

 

CONVERSION OF SHARES IN THE MERGER

 

5.1.  The mode of carrying into effect the Merger provided in this Agreement and the manner and basis of converting the shares of the Constituent Corporations into shares of the Surviving Corporation are as follows:

 

5.1.1.  FMC’s Common Stock.  None of the shares of common stock, par value $1.00 per share, of FMC issued at the effective time of the Merger shall be converted as a result of the Merger, but all of such shares shall remain issued shares of common stock of the Surviving Corporation.

 

5.1.2.  A0105’s Common Stock.  At the effective time of the Merger, each share of common stock, par value $1.00 per share, of A0105 issued and outstanding shall be cancelled and not converted.

 

5.1.3.  CCA’s Common Stock.  At the effective time of the Merger, each share of common stock, par value $1.00 per share, of CCA issued and outstanding shall be cancelled and not converted.

 

5.1.4.  Surrender of Merged Corporation’s Certificates.  As soon as practicable after the Merger becomes effective, the stock certificates representing common stock of the Merged Corporations issued and outstanding at the time the Merger becomes effective shall be surrendered, as above provided.

 

3


 

ARTICLE 6.

 

EFFECT OF THE MERGER

 

6.1.  At the effective time of the Merger, the Surviving Corporation shall succeed to, without other transfer, and shall possess and enjoy all the rights, privileges, immunities, powers, and franchises, both of a public and a private nature, and be subject to all the restrictions, disabilities, and duties of each of the Constituent Corporations, and all the rights, privileges, immunities, powers, and franchises of each of the Constituent Corporations and all property, real, personal, and mixed, and all debts due to the Constituent Corporations on whatever account, for stock subscriptions, as well as for all other things in action or belonging to each of said corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, immunities, powers, and franchises, and all and every other interest shall be thereafter as effectually the property of the Surviving Corporation as they were of the respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in any Constituent Corporation shall not revert or be in any way impaired by reason of the Merger; provided, however, that all rights of creditors and all liens upon any property of either of any Constituent Corporation shall be preserved unimpaired, limited in lien to the property affected by such liens at the effective time of the Merger, and all debts, liabilities, and duties of said Constituent Corporations, respectively, shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities, as duties had been incurred or contracted by the Surviving Corporation.

 

ARTICLE 7.

 

ACCOUNTING MATTERS

 

7.1.  The assets and liabilities of the Constituent Corporations as of the effective time of the Merger shall be taken up on the books of the Surviving Corporation at the amounts at which they shall be carried at that time on the books of the respective Constituent Corporations. The amount of capital of the Surviving Corporation after the Merger shall be equal to the sum of the aggregate par value of the common stock that will remain issued upon the Merger. The surplus of the Surviving Corporation after the Merger, including any surplus arising in the Merger, shall be available to be used for any legal purposes for which surplus may be used.

 

4


 

ARTICLE 8.

 

APPROVAL OF SHAREHOLDERS;

FILING OF CERTIFICATE OF MERGER

 

8.1.  This Agreement has been submitted to Club Corporation International, the shareholder of A0105 and CCA, and unanimously approved by it. This Agreement has not been submitted to Club Corporation International, as the shareholder of the Surviving Corporation, since pursuant to Nevada Revised Statutes 78.454 the Plan and Agreement of Merger requires no action of the stockholders of the Surviving Corporation, if (a) the articles of incorporation of the surviving corporation will not differ from its articles before the merger; (b) each stockholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights immediately after the merger; (c) the number of voting shares outstanding immediately after the merger will not exceed the total number of shares of the surviving corporation outstanding immediately before the merger; and (d) the number of participating shares outstanding immediately after the merger will not exceed the total number of participating shares outstanding immediately before the merger. Articles of Merger in substantially the form annexed hereby as Exhibit “A” shall be signed, verified, and delivered to the Secretary of State of the State of Nevada for filing.

 

ARTICLE 9.

 

REPRESENTATIONS AND WARRANTIES OF MERGED CORPORATIONS

 

9.1.  The Merged Corporations represent and warrant to the Surviving Corporation as follows:

 

9.1.1.  Organization, Etc.  The Merged Corporations are duly organized, validly existing, and in good standing under the laws of the State of Nevada. The Merged Corporations have corporate power to carry on their business as they are now being conducted and are qualified to do business in every jurisdiction in which the character and location of the assets owned by them or the nature of the business transacted by them require qualification.

 

9.1.2.  Capitalization.  The capitalization of the each Merged Corporation consists of 1,000 authorized shares of common stock (par value $1.00 per share), of which 1,000 shares are issued and outstanding, as of the date hereof, and are owned by Club Corporation International. Each issued share is validly issued, fully paid, and nonassessable.

 

5


 

9.2.  Further Warranties and Representations.

 

9.2.1.  The Merged Corporations have and on the closing date will have good and marketable title in fee simple to all lands and buildings shown as assets in their records and books of account, free and clear of all liens, encumbrances, and charges, except as reflected in the aforesaid financial statements and except for current taxes and assessments not delinquent and liens, encumbrances, and charges shown in their records and books of account which are not substantial in character or amount, and which do not materially detract from the value or interfere with the use of the properties subject thereto or affected thereby. The Merged Corporations have and on the effective date of Merger will have valid leases under which they are entitled to occupy and use in their business all real property of which they are lessee, and the Merged Corporations have no knowledge of any default under any such lease.

 

9.2.2.  The Merged Corporations have and on the effective date of Merger will have good and marketable title to the machinery, equipment, merchandise, materials, supplies, and other property of every kind, tangible or intangible, contained in their offices plants, and other facilities or shown as assets in their records and books of account, free and clear of all liens encumbrances, and charges, except as reflected in their financial statements and except for liens, encumbrances, and charges, if any, which do not materially detract from the value of or interfere with the use of the properties subject thereto or affected thereby. The Merged Corporations have and on the effective date of Merger will have valid leases under which they are entitled to use in their business all personal property of which they are lessee, and the Merged Corporations have no knowledge of any default under any such lease.

 

9.2.3.  All taxes imposed by the United States of America or by any foreign country or by any state, municipality, subdivision, or instrumentality of the United States of America or of any foreign country or by any other taxing authority which are due or payable by the Merged Corporations, and all price redetermination or renegotiation claims asserted or that may be asserted against them have been paid in full or are adequately provided for by reserves shown in the records and books of Account of the Merged Corporations and will be so paid or provided for on the closing date. The Merged Corporations have no knowledge of any unassessed tax deficiency proposed or threatened against it.

 

6


 

9.2.4.  The Merged Corporations are adequately insured with respect to risks normally insured against by companies similarly situated. All such policies are in full force and effect.

 

9.2.5.  There is no suit, action, or legal or administrative proceeding pending or, to the knowledge of the Merged Corporations threatened against them which, if adversely determined, might materially and adversely affect the financial condition of the Merged Corporations or the conduct of their businesses, nor is there any decree, injunction, or order of any court, governmental department, or agency outstanding against the Merged Corporations having any such effect.

 

9.2.6.  The Merged Corporations are not in default in any material respect under the terms of any material outstanding contract, agreement, lease, or other commitment.

 

9.2.7.  At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of or constitute a default under any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Merged Corporations are a party.

 

9.2.8.  The Merged Corporations have all necessary licenses, franchises, permits, and other governmental authorizations and are valid and sufficient for all businesses presently carried on by the Merged Corporations.

 

ARTICLE 10.

 

REPRESENTATIONS AND WARRANTIES OF SURVIVING CORPORATION

 

10.1.  The Surviving Corporation represents and warrants to the Merged Corporations as follows:

 

10.1.1.  Organization.  The Surviving Corporation is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada. The Surviving Corporation has corporate power to carry on its business as it is now being conducted and is qualified to do business in every jurisdiction in which the character and location of the assets owned by it or the nature of the business transacted by it require qualification.

 

7

 

10.1.2.  Capitalization. The Surviving Corporation’s capitalization consists of 1,000 authorized shares of common stock (par value $1.00 per share), of which 1,000 shares are issued and outstanding, as of the date hereof, and are owned by Club Corporation International. Each issued share is validly issued, fully paid, and nonassessable.

 

10.1.3.  Litigation and Proceedings. There is no suit, action, or legal or administrative proceeding pending or, to the knowledge of the Surviving Corporation, threatened against it which, if adversely determined, might materially and adversely affect the financial condition of the Surviving Corporation or the conduct of its business, nor is there any decree, injunction, or order of any court, governmental department, or agency outstanding against the Surviving Corporation having any such effect.

 

10.1.4.  Material Contracts. The Surviving Corporation is not in default in any material respect under the terms of any material outstanding contract, agreement, lease, or other commitment.

 

10.1.5.  No Conflict with Other Instruments. At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of, nor constitute a default under, any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Surviving Corporation is a party.

 

10.1.6.  Governmental Authorizations. The Surviving Corporation has all necessary licenses, franchises, permits, and other governmental authorizations and such are valid and sufficient for all businesses presently carried on by it.

 

ARTICLE 11.

 

CONDUCT OF BUSINESS PENDING THE MERGER

 

11.1.  From and after the date of this Agreement and prior to the effective time of the Merger, no Constituent Corporation will, without the prior written consent of the other Constituent Corporations, (i) amend its Certificate of Incorporation or Bylaws; except as may be necessary to enable it to carry out the provisions of this Agreement, (ii) engage in any material activity or transaction or incur any material obligation (by contract or otherwise), except in the ordinary course of business; (iii) issue rights or options to purchase or subscribe to any shares of its capital stock or subdivide or otherwise change any such shares, (iv) issue or sell any shares of its

 

8


 

common stock or securities convertible into shares of its common stock, or (v) declare or pay any dividends on or make any distributions in respect of any shares of its common stock.

 

ARTICLE 12.

 

CONDITIONS PRECEDENT;
TERMINATION; GENERAL PROVISIONS

 

12.1.  Conditions Precedent to A0105’s Obligation. The obligation of A0105 to effect the Merger shall be subject to the following conditions, which may be waived by A0105:

 

12.1.1.  The representations and warranties of the other Constituent Corporations herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; the other Constituent Corporations shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by them prior to the effective time of the Merger.

 

12.1.2.  No material change in the corporate status, businesses, operations, or financial condition of the other Constituent Corporations shall have occurred since the date of the financial statements provided (whether or not covered by insurance), other than changes in the ordinary course of business, none of which has been materially adverse in relation to the other Constituent Corporations, taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations, or financial condition of the other Constituent Corporations, taken as a whole.

 

12.2.  Conditions Precedent to CCA’s Obligation. The obligation of CCA to effect the Merger shall be subject to the following conditions, which may be waived in writing by CCA:

 

12.2.1.  The representations and warranties of the other Constituent Corporations herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; the other Constituent Corporations shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by them prior to the effective time of the Merger.

 

12.2.2.  No material change in the corporate status, businesses, operations, or financial condition of the other Constituent Corporations shall have occurred since the date of the financial statements provided (whether or not covered by insurance), other

 

9


 

than changes in the ordinary course of business, none of which has been materially adverse in relation to the other Constituent Corporations, taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations, or financial condition of the other Constituent Corporations, taken as a whole.

 

12.3.  Conditions Precedent to FMC’s Obligation. The obligation of FMC to effect the Merger shall be subject to the following conditions, which may be waived in writing by FMC:

 

12.3.1.  The representations and warranties of the other Constituent Corporations herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; the other Constituent Corporations shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by them prior to the effective time of the Merger.

 

12.3.2.  No material change in the corporate status, businesses, operations, or financial condition of the other Constituent Corporations shall have occurred since the date of the financial statements provided (whether or not covered by insurance), other than changes in the ordinary course of business, none of which has been materially adverse in relation to the other Constituent Corporations, taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations, or financial condition of the other Constituent Corporations, taken as a whole.

 

12.4.  Termination and Abandonment. Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and abandoned at any time before the effective time of the Merger, whether before or after adoption or approval of this Agreement by the shareholders of the Constituent Corporations under any one or more of the following circumstances:

 

12.4.1.  By the mutual consent of the Board of Directors of the Constituent Corporations, respectively;

 

12.4.2.  By A0105 if, prior to the effective time of the Merger, the conditions set forth in Section 12.1 shall not have been met;

 

12.4.3.  By CCA if, prior to the effective time of the Merger, the conditions set forth in Section 12.2 shall not have been met;

 

10


 

12.4.4.  By FMC if, prior to the effective time of the Merger, the conditions set forth in Section 12.3 shall not have been met.

 

Upon any such termination and abandonment, no party shall have any liability or obligation hereunder to the other parties.

 

12.5.  Amendments. Any of the terms or conditions of this Agreement may be modified or waived at any time before the effective time of the Merger by the party which is, or the shareholders of which are, entitled to the benefit thereof upon the authority of the Board of Directors of such party, provided that any such modification or waiver shall, in the judgment of the party making it, not affect substantially or materially and adversely the benefits to such party or its shareholders intended under this Agreement.

 

IN WITNESS WHEREOF, this Agreement has been signed by the duly authorized officers of each of the Constituent Corporations.

 

 

 

A0105

 

 

 

Attest:

 

A0105 Corp.

 

 

 

 

 

 

/s/ Murry E. Page

 

/s/ John H. Gray

Murry E. Page

 

John H. Gray

Assistant Secretary

 

President

 

 

 

 

 

 

 

 

CCA

 

 

 

Attest:

 

CCA Corp.

 

 

 

 

 

 

/s/ Murry E. Page

 

/s/ John H. Gray

Murry E. Page

 

John H. Gray

Assistant Secretary

 

Vice President

 

11


 

 

 

FMC

 

 

 

Attest:

 

ClubCorp Financial Management Company

 

 

 

 

 

 

/s/ Murry E. Page

 

/s/ John H. Gray

Murry E. Page

 

John H. Gray

Assistant Secretary

 

President

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared John H. Gray, Vice President of A0105 Corp., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day of December, 1991.

 

 

 

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

 

 

Linda M. McGuire

[Notary Public Stamp]

(Typed or Printed Name of Notary)

 

 

 

My Commission Expires:

11-10-92

 

12


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Murry E. Page, Assistant Secretary of A0105 Corp., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day of December, 1991.

 

 

 

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

 

 

Linda M. McGuire

[Notary Public Stamp]

(Typed or Printed Name of Notary)

 

 

 

My Commission Expires:

11-10-92

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared John H. Gray, Vice President of CCA Corp., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day of December, 1991.

 

 

 

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

 

 

Linda M. McGuire

[Notary Public Stamp]

(Typed or Printed Name of Notary)

 

 

 

My Commission Expires:

11-10-92

 

13


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Murry E. Page, Assistant Secretary of CCA Corp., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day of December, 1991.

 

 

 

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

 

 

Linda M. McGuire

[Notary Public Stamp]

(Typed or Printed Name of Notary)

 

 

 

My Commission Expires:

11-10-92

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared John H. Gray, President of ClubCorp Financial Management Company, a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day of December, 1991.

 

 

 

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

 

 

Linda M. McGuire

[Notary Public Stamp]

(Typed or Printed Name of Notary)

 

 

 

My Commission Expires:

11-10-92

 

14


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Murry E. Page, Assistant Secretary of ClubCorp Financial Management Company, a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day of December, 1991.

 

 

 

/s/ Linda M. McGuire

 

Notary Public, State of Texas

 

 

 

Linda M. McGuire

[Notary Public Stamp]

(Typed or Printed Name of Notary)

 

 

 

My Commission Expires:

11-10-92

 

15


 EX-3.38(B) 77 a2202241zex-3_38b.htm EX-3.38(B)

Exhibit 3.38(b)

 

BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
CLUBCORP FINANCIAL MANAGEMENT COMPANY

 

ARTICLE I

 

OFFICES

 

Section 1.   Principal Office. The corporation will maintain offices for the transaction of business of the corporation at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

Section 2.   Other Offices. Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

ARTICLE II

 

MEETINGS OF SHAREHOLDERS

 

Section 1.   Place of Meetings. All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, (ii) consented to by the written consent of all shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of residence of any shareholder holding over two-thirds (2/3) of the capital stock of the corporation.

 

Section 2.   Annual Meetings. The annual meeting of shareholders shall be on the 4th Thursday of December in each year at 10:00 a.m.; provided, however, that should said day fall upon a legal holiday, then any such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such meetings, Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the power of the shareholders.

 

Section 3.   Special Meetings. Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one (1) or more shareholders holding not less than one-fifth (1/5) of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given,

 

1


 

as provided below, that a meeting will be held at a time, fixed by the officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

Section 4.   Notice of Meeting. Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day, and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer, or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of shares, securities, or any other consideration (other than money) in the process of winding up.

 

Section 5.   Consent of Absentees. The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents, or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

Section 6.   Quorum. The presence in person or by proxy of persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

Section 7.   Voting. Unless a record date for voting purposes be fixed, as hereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to

 

2


 

vote thereat. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one (1) vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

Section 8.   Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by one (1) or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

Section 9.   Adjourned Meetings and Notice Thereof. Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person, or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

Section 10. Action Without Meeting. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting and filed with the Secretary of the corporation; provided, however, a meeting shall be held for dissolution, transfer of all or substantially all of the assets of the corporation, or for merger or consolidation of the corporation with other corporations, if same is required under applicable law.

 

ARTICLE III

 

DIRECTORS

 

Section 1.   Powers. Subject to limitations imposed by law or by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint

 

3


 

an Executive Committee and other committees and may delegate to the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two (2) or more Directors.

 

Section 2.   Number of Directors. The authorized number of Directors of the corporation shall be not less than one (1) nor more than five (5) until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

Section 3.   Election and Term of Office. The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

Section 4.   Vacancies. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation, or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of his term of office.

 

4


 

Section 5.   Quorum. A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

Section 6.   Place of Directors’ Meetings. Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

Section 7.   Regular Meetings. Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

Section 8.   Special Meetings. Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two (2) Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each Director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or telegraphed shall be deposited in the United States mail or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting.

 

Section 9.   Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

Section 10. Waiver of Notice: Consent to Meeting. The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes

 

5


 

thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

Section 11. Adjournment. A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

Section 12. Action Without Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

Section 13. Fees and Compensation. Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

Section 14. Indemnification of Directors, Officers and Employees. To the extent permitted by Texas Business Corporation Act, Article 2.02-1 and its successors, the Board of Directors shall authorize the corporation to indemnify any present or former director, officer, employee, or agent of the corporation against judgments, penalties (including excise and similar taxes), fines, settlements, and reasonable expenses actually incurred by the person in connection with a proceeding in which the person was, is, or is threatened to be made a named defendant or respondent because the person is or was a director, officer, employee, or agent of the corporation.

 

ARTICLE IV

 

OFFICERS

 

Section 1.   Officers. The corporation shall have a President, one (1) or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

6


 

Section 2.   Other Officers. The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one (1) or more Assistant Secretaries, one (1) or more Assistant Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

Section 3.   Removal and Resignation. Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President, or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4.   Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

Section 5.   Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

Section 6.   President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, at all meetings of the Board of Directors. He shall be an ex officio member of all the standing committees, including the Executive Committee, if any, and shall have the general powers and duties of management usually vested in the office of the President of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors.

 

7


 

Section 7.   Vice President. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors.

 

Section 8.   Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of the corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 9.   Treasurer. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus, and shares. Any surplus, including earned surplus, paid-in surplus, and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions

 

8


 

as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V

 

MISCELLANEOUS

 

Section 1.   Record Date and Closing Stock Books. The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion, or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

Section 2.   Inspection of Corporate Records. The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary, or Assistant Secretary of the corporation.

 

Every Director shall have the right at any reasonable time to inspect the books, records, documents of every kind, and the physical properties of the corporation and of its subsidiary corporations, domestic or foreign.

 

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Section 3.   Certificates for Shares. A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares, and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

Section 4.   Transfer of Stock. The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney, or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

Section 5.   Lost Certificates. New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

Section 6.   Corporate Seal. A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

Section 7.   Contracts — Execution of Documents. The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

 

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All checks, drafts, or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

Section 8.   Representation of Shares of Other Corporations. The President or any Vice President and the Secretary or Assistant Secretary of the corporation are authorized to vote, represent and exercise on behalf of the corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the corporation. The authority herein granted to said officers to vote or represent on behalf of the corporation any and all shares held by the corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 9.   Inspection of Bylaws. The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VI

 

AMENDMENTS

 

Section 1.   Power of Shareholders. New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

Section 2.   Power of Directors. Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

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 EX-3.39(A) 78 a2202241zex-3_39a.htm EX-3.39(A)

Exhibit 3.39(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP GCL CORPORATION

 

This Amended and Restated Certificate of Incorporation of ClubCorp GCL Corporation (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp GCL Corporation.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own ownership interests and act as partner in each the following joint ventures: (i) Aliso Viejo Golf Club Joint Venture; (ii) Aliso Viejo Commercial Property Joint Venture; and (iii) Aliso Viejo Hotel Joint Venture (collectively, the “Property”) and to operate or cause the Aliso Viejo Golf Club, located in the City of Aliso Viejo, State of California, to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.39(B) 79 a2202241zex-3_39b.htm EX-3.39(B)

Exhibit 3.39(b)

 

BY-LAWS

 

OF

 

CLUBCORP GCL CORPORATION

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.             Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.             Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.             Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.             Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.             Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.             Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.             Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.             Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.             List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.           Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.           Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.           Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.             Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.             Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.             Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.             Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.             Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.             Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.             Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.             Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.            Committees.  The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.            Committee Rules.  Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.            Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.  The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.            Powers and Duties of Executive Officers.  The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.            Appointing Attorneys and Agents; Voting Securities of Other Entities.  Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.            Certificates.  Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.            Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates.  The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.            Right to Indemnification.  The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.            Prepayment of Expenses.  The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.            Claims.  If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.            Nonexclusivity of Rights.  The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.            Other Sources.  The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.            Amendment or Repeal.  Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.            Other Indemnification and Prepayment of Expenses.  This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.            Fiscal Year.  The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.            Seal.  The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.            Manner of Notice.  Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.            Waiver of Notice of Meetings of Stockholders, Directors and Committees.  Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.            Form of Records.  Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.            Amendment of By-Laws.  These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.40(A) 80 a2202241zex-3_40a.htm EX-3.40(A)

Exhibit 3.40(a)

 

 

STATE  OF  DELAWARE

 

SECRETARY  OF  STATE

 

DIVISION  OF  CORPORATIONS

 

FILED  09:00  AM  03/15/1999

 

991099549  —  3016710

 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP GEN PAR OF TEXAS, L.L.C.

 

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

 

FIRST: The name of the limited liability company (hereinafter called the “limited liability company”) is ClubCorp Gen Par of Texas, L.L.C.

 

SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.

 

 

Executed on March 15, 1999.

 

 

 

/s/ Thomas T. Henslee

 

 

Thomas T. Henslee, Authorized Person

 


 EX-3.40(B) 81 a2202241zex-3_40b.htm EX-3.40(B)

Exhibit 3.40(b)

 

THIRD AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

CLUBCORP GEN PAR OF TEXAS, L.L.C.

 

This Third Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Gen Par of Texas, L.L.C. (the “Company”), is entered into by FFFC Golf Acquisitions, L.L.C., as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on March 15, 1999, Thomas T. Henslee executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act, as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Second Amended and Restated Limited Liability Company Agreement of ClubCorp Gen Par of Texas, L.L.C., dated as of April 1, 2007 entered into by FFFC Golf Acquisitions, L.L.C., as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.                                            Name.

 

The name of the limited liability company continued hereby is ClubCorp Gen Par of Texas, L.L.C.

 

Section 2.                                            Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.                                            Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.                                            Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.                                            Members.

 

(a)                                  The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of the original Limited Liability Company Agreement of the Company dated as of March 12, 1999.

 

(b)                                 The Member may act by written consent.

 

Section 6.                                            Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.                                            Purposes.  The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                                  to hold the liquor license and manage or operate the liquor concessions for one or more country clubs or golf courses, in the City of Suwanee, State of Georgia, including the country club and golf course currently known as Laurel Springs Golf Club and to own interests in and act as a general partner in each of ClubCorp Golf of Georgia, L.P. and ClubCorp Golf of Texas, L.P. (collectively, the “Property”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

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(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.                                            Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.                                            Management.

 

(a)                                  Board of Directors.  The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)                                 Powers.  The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                                  Meeting of the Board of Directors.  The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)                                 Quorum: Acts of the Board.  At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the

 

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Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                                  Electronic Communications.  Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                                    Committees of Directors.

 

(i)                        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                     In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                  Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)                                 Compensation of Directors; Expenses.  The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)                                 Removal of Directors.  Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                                     Directors as Agents.  To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions

 

4


 

of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.                                      Reserved.

 

Section 11.                                      Officers.

 

(a)                                  Officers.  The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)                                 President.  The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                                  Vice President.  In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)                                 Secretary and Assistant Secretary.  The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant

 

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Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                                  Treasurer and Assistant Treasurer.  The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                                    Officers as Agents.  The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)                                 Duties of Board and Officers.  Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.                                      Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.                                      Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.                                      Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement.

 

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The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.                                      Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.                                      Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.                                      Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.                                      Reserved.

 

Section 19.                                      Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.                                      Exculpation and Indemnification.

 

(a)                                  Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the

 

7


 

authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)                                 To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                                  To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)                                 A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                                  To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                                    The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.                                      Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the

 

8


 

Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.                                      Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.                                      Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.                                      Dissolution.

 

(a)                                  The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the

 

9


 

event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)                                 Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                                  In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)                                 The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.                                      Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.                                      Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.                                      Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

10

 

Section 28.                                      Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.                                      Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.                                      Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.                                      Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.                                      Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.                                      Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.                                      Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

11


 

waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend:

 

This certificate evidences an interest in ClubCorp Gen Par of Texas, L.L.C. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

FFFC GOLF ACQUISITIONS, L.L.C.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the Third A&R LLC Agreement — ClupCorp Gen Par of Texas LLC

 


 

SCHEDULE A

 

Definitions

A.            Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Third Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on March 15, 1999 as amended or amended and restated from time to time.

 

“Company” means ClubCorp Gen Par of Texas, L.L.C., a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the Act.

 

“Member” means FFFC Golf Acquisitions, L.L.C., a Delaware limited liability company, as a member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.            Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

FFFC Golf
Acquisitions, L.L.C.

 

FFFC Golf Acquisitions, L.L.C.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703 Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.                          Eric L. Affeldt

 

2.                          Eric C. Resnick

 

3.                          Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CLUBCORP GEN PAR OF TEXAS, L.L.C.

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-2

 

100% of Interests

 

 

ClubCorp Gen Par of Texas, L.L.C., a Delaware limited liability company (the “Company”), hereby certifies that FFFC Golf Acquisitions, L.L.C. (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER       , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in the Company. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                           ] as of the date set forth below.

 

Dated: as of

 

 

 

 

Name:

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF CLUBCORP GEN PAR OF TEXAS, L.L.C.)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                  (print or typewrite name of Transferee),                               (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                    (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                   , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

 

(Transferor)

 

Address:   

 

 

 

 

 

 

E-2


 EX-3.41(A) 82 a2202241zex-3_41a.htm EX-3.41(A)

Exhibit 3.41(a)

 

CERTIFICATE OF FORMATION

OF

CLUBCORP GOLF OF CALIFORNIA, L.L.C.

 

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

 

FIRST: The name of the limited liability company (hereinafter called the “limited liability company”) is ClubCorp Golf of California, L.L.C.

 

SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.

 

Executed on March 12, 1999.

 

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee, Authorized Person

 

 

 

STATE OF DELAWARE

 

 

SECRETARY OF STATE

 

 

DIVISION OF CORPORATIONS

 

 

FILED 09:00 AM 03/12/1999

 

 

991098969 – 3016478

 


 EX-3.41(B) 83 a2202241zex-3_41b.htm EX-3.41(B)

Exhibit 3.41(b)

 

THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CLUBCORP GOLF OF CALIFORNIA, L.L.C.

 

This Third Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Golf of California, L.L.C. (the “Company”), is entered into by FFFC Golf Acquisitions, L.L.C., as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on March 12, 1999, Thomas T. Henslee executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act, as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Second Amended and Restated Limited Liability Company Agreement of ClubCorp Golf of California, L.L.C., dated as of April 1, 2007 entered into by FFFC Golf Acquisitions, L.L.C., as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.               Name.

 

The name of the limited liability company continued hereby is ClubCorp Golf of California, L.L.C.

 

Section 2.               Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.               Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.               Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.               Members.

 

(a)                The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the original Limited Liability Company Agreement of the Company dated as of March 12, 1999.

 

(b)               The Member may act by written consent.

 

Section 6.               Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.               Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                to own that certain parcel of real property, together with all improvements located thereon, currently known as the Morgan Run Resort & Club, in the City of Rancho Santa Fe, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)               to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)               to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

2


 

filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8                Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.               Management.

 

(a)                Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)               Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)               Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

3


 

or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)           Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)            Committees of Directors.

 

(i)            The Board may, by resolution passed by a majority of the whole Board), designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)           In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)          Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)           Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)           Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)            Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the

 

4


 

Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.             Reserved.

 

Section 11.             Officers.

 

(a)             Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)             President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)             Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)             Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s

 

5


 

inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)             Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)              Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)             Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.             Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.             Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.             Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon

 

6


 

any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.             Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.             Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not to make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.             Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.             Reserved.

 

Section 19.             Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.             Exculpation and Indemnification.

 

(a)             Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person

 

7


 

shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)             To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)             To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)             A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)             To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)              The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its

 

8


 

agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.             Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.             Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.             Dissolution.

 

(a)             The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the

 

9


 

event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)             Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)             In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)             The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.             Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.             Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.             Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

10

 

Section 28.             Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.             Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.             Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.             Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.             Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.             Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.             Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

11


 

waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend:

 

This certificate evidences an interest in ClubCorp Golf of California, L.L.C. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

FFFC GOLF ACQUISITIONS, L.L.C.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the Third A&R LLC Agreement – ClubCorp Golf of California, L.L.C.

 


 

SCHEDULE A

 

Definitions

A.            Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Third Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on March 12, 1999 as amended or amended and restated from time to time.

 

“Company” means ClubCorp Golf of California, L.L.C., a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the Act.

 

“Member” means FFFC Golf Acquisitions, L.L.C., a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.            Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

FFFC Golf Acquisitions, L.L.C.

 

FFFC Golf Acquisitions, L.L.C.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.     Eric L. Affeldt

2.     Eric C. Resnick

3.     Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CLUBCORP GOLF OF CALIFORNIA, L.L.C.

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-2

 

 

100% of Interests

 

ClubCorp Golf of California, L.L.C., a Delaware limited liability company (the “Company”), hereby certifies that FFFC Golf Acquisitions, L.L.C. (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER       , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in ClubCorp Golf of California, L.L.C. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                              ] as of the date set forth below.

 

Dated:

 

 

 

 

Name:

 

Title:

 

E-1


 

REVERSE SIDE OF CERTIFICATE

FOR INTERESTS OF CLUBCORP GOLF OF CALIFORNIA, L.L.C.

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                            (print or typewrite name of Transferee),                                          (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                                      (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                           , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:_______________________________________________

Signature:_____________________________________________

 

 

(Transferor)

 

 

 

Address:___________________________________________________

 

              ___________________________________________________

 

              ___________________________________________________

 

 

E-2


 EX-3.42(A) 84 a2202241zex-3_42a.htm EX-3.42(A)

Exhibit 3.42(a)

 

STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/12/1999
991098981 – 3016480

 

 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP GOLF OF FLORIDA, L.L.C.

 

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

 

FIRST: The name of the limited liability company (hereinafter called the “limited liability company”) is ClubCorp Golf of Florida, L.L.C.

 

SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.

 

Executed on March 12, 1999.

 

 

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee, Authorized Person

 


 EX-3.42(B) 85 a2202241zex-3_42b.htm EX-3.42(B)

Exhibit 3.42(b)

THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CLUBCORP GOLF OF FLORIDA, L.L.C.

 

This Third Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Golf of Florida, L.L.C. (the “Company”), is entered into by FFFC Golf Acquisitions, L.L.C., as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on March 12, 1999, Thomas T. Henslee executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act, as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Second Amended and Restated Limited Liability Company Agreement of ClubCorp Golf of Florida, L.L.C., dated as of April 1, 2007 entered into by FFFC Golf Acquisitions, L.L.C., as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.               Name.

 

The name of the limited liability company continued hereby is ClubCorp Golf of Florida, L.L.C.

 

Section 2.               Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.               Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.               Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.               Members.

 

(a)           The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the original Limited Liability Company Agreement of the Company dated as of March 12, 1999.

 

(b)           The Member may act by written consent.

 

Section 6.               Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.               Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)           to own those certain parcels of real property, together with all improvements located thereon, currently known as (A) the Eastlake Woodlands Country Club, in the City of Oldsmar, State of Florida, and (B) the Deercreek Country Club, in the City of Jacksonville, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)           to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

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(d)           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)           to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.               Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.               Management.

 

(a)           Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)           Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)           Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)           Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the

 

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Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)           Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)            Committees of Directors.

 

(i)            The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)           In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)          Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)           Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)           Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)            Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions

 

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of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.             Reserved.

 

Section 11.             Officers.

 

(a)           Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)           President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except:. (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)           Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)           Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant

 

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Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)           Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)            Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)           Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.             Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.             Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.             Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement.

 

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The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.             Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.             Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.             Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.             Reserved.

 

Section 19.             Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.             Exculpation and Indemnification.

 

(a)           Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the

 

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authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)           To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)           To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)           A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)           To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)            The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the

 

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Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.             Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.             Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.             Dissolution.

 

(a)           The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the

 

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event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)           Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)           In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)           The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.             Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.             Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.             Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

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Section 28.             Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.             Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.             Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.             Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.             Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.             Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.             Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

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waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend:

 

This certificate evidences an interest in ClubCorp Golf of Florida, L.L.C. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER: 

 

 

 

 

 

FFFC Golf Acquisitions, L.L.C.

 

 

 

 

 

 

 

 

By: 

/s/ Ingrid Keiser

 

 

Name: 

Ingrid Keiser

 

 

 

Title: 

Secretary

 

 

Signature Page to the Third A&R LLC Agreement — ClubCorp Golf of Florida, L.L.C.

 


 

SCHEDULE A

 

Definitions

 

A.            Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Third Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on March 12, 1999 as amended or amended and restated from time to time.

 

“Company” means ClubCorp Golf of Florida, L.L.C., a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the Act.

 

“Member” means FFFC Golf Acquisitions, L.L.C., a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.            Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

FFFC Golf Acquisitions, L.L.C.

 

FFFC Golf Acquisitions, L.L.C.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

 

 

DIRECTORS

 

 

 

1.

 

Eric L. Affeldt

 

 

 

2.

 

Eric C. Resnick

 

 

 

3.

 

Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CLUBCORP GOLF OF FLORIDA, L.L.C.

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-2

100% of Interests

 

ClubCorp Golf of Florida, L.L.C., a Delaware limited liability company (the “Company”), hereby certifies that FFFC Golf Acquisitions, L.L.C. (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER           , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in ClubCorp Golf of Florida, L.L.C. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                             ] as of the date set forth below.

 

Dated: as of

 

 

 

 

 

 

Name:

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF CLUBCORP GOLF OF FLORIDA, L.L.C.)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                          (print or typewrite name of Transferee),                                    (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                                     (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                      , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

 

(Transferor)

 

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

 

 

E-2


 EX-3.43(A) 86 a2202241zex-3_43a.htm EX-3.43(A)

Exhibit 3.43(a)

 

Secretary of State

Corporations Division

315 West Tower

#2 Martin Luther King, Jr. Dr.

Atlanta, Georgia 30334-1530

 

CONTROL NUMBER
EFFECTIVE DATE
COUNTY
REFERENCE
PRINT DATE
FORM NUMBER

:
:
:
:
:
:

K909940
03/08/1999
FULTON
0045
03/09/1999
327

 

CSC

HEATHER KLINZING

100 PEACHTREE STREET, STE 660

ATLANTA, GA 30303

 

 

CERTIFICATE OF LIMITED PARTNERSHIP FILING

 

I, Cathy Cox, the Secretary of State of the State of Georgia, do hereby certify under the seal of my office that the domestic limited partnership

 

CLUBCORP GOLF OF GEORGIA, L.P.
A DOMESTIC LIMITED PARTNERSHIP

 

has filed, as of the effective date stated above, its Certificate of Limited Partnership with the Secretary of State and has paid all fees as required by Title 14 of the Official Code of Georgia Annotated.

 

WITNESS my hand and official seal in the City of Atlanta and the State of Georgia on the date set forth above.

 

 

 

 

 

[State of Georgia Seal]

 

 

 

 

/s/ Cathy Cox

 

Cathy Cox
Secretary of State

 

Certification#: 6189481-1 Page 1 of 5

 


 

CERTIFICATE OF LIMITED PARTNERSHIP

 

OF

 

CLUBCORP GOLF OF GEORGIA, L.P.

 

1.

 

The name of the limited partnership is ClubCorp Golf of Georgia, L.P.

 

2.

 

The street address of the registered office is 100 Peachtree Street, Suite 660, Atlanta, Georgia 30303-1905 in Fulton County. The registered agent at such address is The United States Corporation Company.

 

3.

 

The name and address of the general partner is:

 

ClubCorp Gen Par of Texas, L.L.C.

3030 LBJ Freeway

Dallas, Texas 75234

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership.

 

This 2nd day of March, 1999.

 

 

 

ClubCorp Gen Par of Texas, L.L.C., its general partner

 

 

 

 

 

/s/ Thomas T. Henslee

 

 

Thomas T. Henslee

 

 

Secretary

 

Certification#: 6189481-1 Page 2 of 5

 


 

 

[State of Georgia Seal]

 

CATHY COX

Secretary of State

OFFICE OF SECRETARY OF STATE
CORPORATIONS DIVISION
315 West Tower, #2 Martin Luther King, Jr. Drive

Atlanta, Georgia 30334-1530

(404) 656-2817

Registered agent, officer, entity status information via the Internet http://www.sos.state.ga.us/corporations

 

CERTIFICATE OF LIMITED PARTNERSHIP

GEORGIA LIMITED PARTNERSHIP

TRANSMITTAL FORM

 

 

WARREN RARY

Director

 

QUINTILIS B. ROBINSON

Deputy Director

 

DO NOT WRITE IN SHADED AREA - SOS USE ONLY

 

DOCKET

K90671028

 

PENDING

P267826

 

CONTROL #

K909940

 

DOCKET CODE

 327

 

DATE FILED

3-8-99

 

AMOUNT RECEIVED

 160.00

 

CHECK/ RECEIPT #

18[Illegible]44

 

TYPE CODE

7D

 

EXAMINER

45

 

JURISDICTION CODE

060

 

 

NOTICE TO APPLICANT: PRINT PLAINLY OR TYPE REMAINDER OF THIS FORM

 

1.

 

 

 

 

 

Limited Partnership Name Reservation Number

 

 

ClubCorp Golf of Georgia, L.P.

 

 

 

Limited Partnership Name

 

2.

 

Corporation Service Company

 

404-659-8832

 

 

 

Applicant/Attorney

 

Telephone Number

 

 

 

100 Peachtree St.

 

 

 

Address

 

 

Atlanta

 

GA

 

30303

 

 

 

City

State

Zip Code

 

 

 

 

 

3.

 

100 Peachtree St.

 

 

 

Principle Office Mailing Address

 

 

Atlanta

 

GA

 

30303

 

 

 

City

State

Zip Code

 

4.

 

Corporation Service Company

 

 

 

Name of Registered Agent in Georgia

 

 

100 Peachtree St.

 

 

 

Registered Office Street Address in Georgia

 

 

Atlanta

 

Fulton

 

GA

 

30303

 

 

 

City

County

State

Zip Code

 

5.

 

For Limited Partnerships formed prior to July 1, 1988 ONLY:

 

 

Date Formed:

County:

Book No:

Page No:

 

6.

 

NOTICE: THIS FORM DOES NOT REPLACE THE CERTIFICATE OF LIMITED PARTNERSHIP REQUIRED BY TITLE 14 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED. Mail or deliver this Transmittal Form, the original and one copy of the Certificate of Limited Partnership, and the filing fee of $60.00 to the Secretary of State at the above address. Filing fees are NON-refundable

 

 

 

 

 

I understand that the Information on this form will be entered in the Secretary of State business entity database, and I verify that the above information is true and correct to the best of my knowledge.

 

/s/ [Illegible]

 

3/8/99

Authorized Signature

 

Date

 

 

 

 

Request certificates and reserve names via the Internet: http://www.sos.state.ga.us/corporations/request.htm

 

FORM 246

 

Certification#: 6189481-1 Page 5 of 5

 


 EX-3.43(B) 87 a2202241zex-3_43b.htm EX-3.43(B)

Exhibit 3.43(b)

 

THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
CLUBCORP GOLF OF GEORGIA, L.P.

 

This Third Amended and Restated Limited Partnership Agreement (together with the schedules attached hereto, this “Partnership Agreement”) of ClubCorp Golf of Georgia, L.P., a Georgia limited partnership (the “Partnership”), is entered into by ClubCorp Gen Par of Texas, L.L.C., a Delaware limited liability company, as the general partner (the “General Partner”), CCA Golf Course Holdco, LLC, a Delaware limited liability company, as the limited partner (the “Limited Partner” and together with the General Partner, the “Partners”). Capitalized terms used and not otherwise defined herein have the respective meanings set forth on Schedule A hereto.

 

WHEREAS, on March 8, 1999, the General Partner executed and filed a Certificate of Limited Partnership with the Secretary of State of the State of Georgia in accordance with and pursuant to the Georgia Revised Uniform Limited Partnership Act, as amended from time to time (the “Act”).

 

WHEREAS, the Partnership is currently governed by that certain Second Amended and Restated Agreement of Limited Partnership of ClubCorp Golf of Georgia, L.P., dated as of December 26, 2006 entered into by ClubCorp Gen Par of Texas, L.L.C., as the General Partner and ClubCorp Golf of Oklahoma, L.L.C., as the Limited Partner, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Partners desire to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.               Name.

 

The name of the limited partnership continued hereby is ClubCorp Golf of Georgia, L.P.

 

Section 2.               Principal Business Office.

 

The principal business office of the Partnership shall be located at 3030 LBJ Freeway, Dallas, Texas 75381, or at such other location as may hereafter be determined by the General Partner.

 

Section 3.               Registered Office.

 

The address of the registered office of the Partnership in the State of Georgia is in care of the registered agent of the Partnership.

 


 

Section 4.               Registered Agent.

 

(a)              The name and address of the registered agent of the Partnership for service of process of the Partnership in the State of Georgia are as set forth in the Partnership’s Certificate of Limited Partnership, as the same may be amended from time to time (the “Certificate”).

 

Section 5.               Partners.

 

(a)              The mailing addresses of the Partners are set forth on Schedule B attached hereto.

 

(b)              The Partners may act by written consent.

 

Section 6.               Certificates and Duration.

 

The General Partner executed, delivered and filed the Certificate of Limited Partnership of the Partnership with the Secretary of State of the State of Georgia. The General Partner or an authorized designee shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in any jurisdiction in which the Partnership may wish to conduct business.

 

The existence of the Partnership as a separate legal entity shall continue until its business and affairs are wound up as provided in Section 22 of this Partnership Agreement.

 

Section 7.               Purposes.

 

The purpose to be conducted or promoted by the Partnership is to engage in the following activities:

 

(a)                                               to own those certain parcels of real property, together with all improvements located thereon, currently known as (A) Country Club of Gwinnett, in the City of Snelville, State of Georgia and (B) Eagle’s Landing Country Club, the City of Stockbridge, State of Georgia (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                              to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                               to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Partnership’s property;

 

(d)                                              to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                               to engage in any lawful activities and to exercise such powers permitted to limited partnerships organized under the laws of the State of Georgia.

 

2


 

Section 8.               Powers.

 

The Partnership and the General Partner on behalf of the Partnership (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited partnerships formed pursuant to the Act.

 

Section 9.               Management.

 

(a)              Authorized Representatives. The business and affairs of the Partnership shall be managed by the General Partner.

 

(b)              Powers.    The General Partner shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise possessed by general partners under the laws of the State of Georgia. Subject to Section 7, the General Partner has the authority to bind the Partnership. Except as provided herein, the Limited Partner shall have no part in the operation or management of the Partnership and shall have no authority or right to act on behalf of or to bind the Partnership in connection with any matter.

 

Section 10.             Reserved.

 

Section 11.             Limited Liability.

 

Except as provided herein or by the Act, the General Partner shall have the liabilities of a partner in a partnership without limited partners. Except as otherwise expressly required by law, the Limited Partner, in its capacity as such, shall have no liability in excess of (a) the amount of its capital contribution to the Partnership, (b) its share of any undistributed profits and assets of the Partnership, (c) its obligation to make other payments expressly provided for in this Partnership Agreement, and (d) the amount of any distributions wrongfully distributed to it.

 

Section 12.             Capital Contributions.

 

The General Partner and the Limited Partner have contributed to the Partnership property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.             Additional Contributions.

 

No Partner is required to make any additional capital contribution to the Partnership. However, a Partner may make additional capital contributions to the Partnership at any time upon the written consent of the General Partner. To the extent that a Partner makes an additional capital contribution to the Partnership, the General Partner shall revise Schedule B of this Partnership Agreement. The provisions of this Partnership Agreement, including this Section 13, are intended to benefit the General Partner, the Limited Partner and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Partnership (and no such creditor of the Partnership shall be a third-party beneficiary of this Partnership Agreement) and the Limited Partner shall have no duty or obligation to any creditor

 

3


 

of the Partnership to make any contribution to the Partnership or to issue any call for capital pursuant to this Partnership Agreement.

 

Section 14.             Allocation of Profits and Losses.

 

The Partnership’s profits and losses shall be allocated 1% to the General Partner and 99% to the Limited Partner.

 

Section 15.             Distributions.

 

Distributions shall be made 1% to the General Partner and 99% to the Limited Partner at the times and in the aggregate amounts determined by the General Partner. Notwithstanding any provision to the contrary contained in this Partnership Agreement, the Partnership shall not make a distribution to a Partner on account of its interest in the Partnership if such distribution would violate the Act or any other applicable law.

 

Section 16.             Books and Records.

 

The General Partner shall keep or cause to be kept complete and accurate books of account and records with respect to the Partnership’s business. The books of the Partnership shall at all times be maintained by the General Partner. The Partnership’s books of account shall be kept using the method of accounting determined by the General Partner. The Partnership’s independent auditor, if any, shall be an independent public accounting firm selected by the General Partner.

 

Section 17.             Other Business.

 

The Limited Partner, the General Partner and any Affiliate of the General Partner, or the Limited Partner may engage in or possess an interest in other business ventures (unconnected with the Partnership) of every kind and description, independently or with others. The Partnership shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Partnership Agreement notwithstanding any other provision to the contrary at law or in equity.

 

Section 18.             Exculpation and Indemnification.

 

(a)                To the fullest extent permitted by applicable law, neither the General Partner, nor the Limited Partner, nor any, employee or agent of the Partnership nor any employee, representative, manager, agent or Affiliate of the General Partner or the Limited Partner (collectively, the “Covered Persons”) shall be liable to the Partnership or any other Person who is a party to or otherwise bound by the terms of this Partnership Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Partnership and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Partnership Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

4


 

(b)               To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Partnership for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Partnership and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Partnership Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Partnership shall be provided out of and to the extent of Partnership assets only, and the General Partner and the Limited Partner shall not have personal liability on account thereof.

 

(c)                To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Partnership of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)               A Covered Person shall be fully protected in relying in good faith upon the records of the Partnership and upon such information, opinions, reports or statements presented to the Partnership by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Partnership, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Partners might properly be paid.

 

(e)                To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or to any other Covered Person, a Covered Person acting under this Partnership Agreement shall not be liable to the Partnership or to any other Covered Person for its good faith reliance on the provisions of this Partnership Agreement or any approval or authorization granted by the Partnership or any other Covered Person. The provisions of this Partnership Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the General Partner and the Limited Partner to replace such other duties and liabilities of such Covered Person.

 

(f)                The foregoing provisions of this Section 18 shall survive any termination of this Partnership Agreement.

 

Section 19.             Assignments.

 

A General Partner may assign in whole or in part its general partner interest in the Partnership. Subject to Section 21, if a General Partner transfers all of its general partner interest in the Partnership pursuant to this Section 19 and ceases to be a Partner, the transferee shall be admitted to the Partnership as a general partner of the Partnership upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Partnership

 

5


 

Agreement, which instrument may be a counterpart signature page to this Partnership Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor General Partner shall cease to be a general partner of the Partnership, and the parties hereto agree that following such an assigning General Partner ceasing to be a general partner of the Partnership in accordance with this Partnership Agreement, any remaining general partners of the Partnership, including a substitute General Partner, are hereby authorized to, and shall, continue the business of the Partnership without dissolution. Without limiting the foregoing, the General Partner may hypothecate, pledge or assign for security purposes any part of all of its interest in the Partnership to any other Person and remain a General Partner entitled to exercise rights and receive distributions and allocations pursuant to this Partnership Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Partnership as a Partner. Notwithstanding anything in this Partnership Agreement to the contrary, any successor to a General Partner by merger or consolidation shall, without further act, be the General Partner hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Partnership Agreement and the Partnership shall continue without dissolution.

 

A Limited Partner may assign in whole or in part its limited partner interest in the Partnership. Subject to Section 21, if a Limited Partner transfers all of its limited partner interest in the Partnership pursuant to this Section 19, the transferee shall be admitted to the Partnership as a limited partner of the Partnership upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Partnership Agreement, which instrument may be a counterpart signature page to this Partnership Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Limited Partner shall cease to be a limited partner of the Partnership. Without limiting the foregoing, the Limited Partner may hypothecate, pledge or assign for security purposes any part of all of its interest in the Partnership to any other Person and remain a Limited Partner entitled to exercise rights and receive distributions and allocations pursuant to this Partnership Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Partnership as a Partner. Notwithstanding anything in this Partnership Agreement to the contrary, any successor to a Limited Partner by merger or consolidation shall, without further act, be the Limited Partner hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Partnership Agreement and the Partnership shall continue without dissolution.

 

Section 20.             Resignation.

 

If a General Partner resigns, an additional general partner of the Partnership shall be admitted to the Partnership, subject to Section 21, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Partnership Agreement, which instrument may be a counterpart signature page to this Partnership Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning General Partner shall cease to be a general partner of the Partnership.

 

6


 

If a Limited Partner resigns, an additional limited partner of the Partnership shall be admitted to the Partnership, subject to Section 21, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of the Partnership Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning limited partner shall cease to be a limited partner of the Partnership.

 

Section 21.             Admission of Additional Partners.

 

One or more additional limited partners of the Partnership may be admitted to the Partnership with the written consent of the General Partner.

 

Section 22.             Dissolution.

 

(a)                The Partnership shall be dissolved, wound up and terminated, and its affairs shall be wound up upon the first to occur of the following:

 

(i)            the occurrence of an event of withdrawal (as defined in the Act) with respect to a General Partner, other than an event of withdrawal set forth in Section 14-9-602(a)(4)-(5) of the Act; provided, the Partnership shall not be dissolved and required to be wound up in connection with any of the event specified in this clause (i) if (1) at the time of the occurrence of such event there is at least one remaining general partner of the Partnership who is hereby authorized to and shall carry on the business of the Partnership, or (2) if at such time there is no remaining General Partner, if within 120 days after such event of withdrawal, the Limited Partners agree in writing or vote to continue the business of the Partnership and to appoint, effective as the day of withdrawal, one or more additional General Partners, or (3) the Partnership is continued without dissolution in a manner permitted by the Act or this Partnership Agreement;

 

(ii)           there are no limited partners of the Partnership unless the business of the Partnership is continued in accordance with the Act and this Partnership Agreement; or

 

(iii)          the entry of a decree of judicial dissolution under the Act.

 

Notwithstanding any other provision of this Partnership Agreement to the contrary, upon the occurrence of an event that causes the last remaining limited partner in the Partnership to cease to be a limited partner in the Partnership, to the fullest extent permitted by law, all of the Partners agree that the personal representative of such limited partner is hereby authorized to, and shall within 90 days after the occurrence of the event that terminated the continued membership of such limited partner in the Partnership, agree in writing (i) to continue the Partnership, and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute limited partner of the Partnership, effective as of the occurrence of the event that terminated the continued membership of the last remaining limited partner of the Partnership in the Partnership.

 

Notwithstanding any other provision of this Partnership Agreement, upon the occurrence of any event that results in any general partner ceasing to be a general partner in the Partnership under the Act, to the fullest extent permitted by law, if at the time of the occurrence of such

 

7


 

event there is at least one remaining general partner of the Partnership, such remaining general partner(s) of the Partnership is (are) hereby authorized to and, to the fullest extent permitted by law, shall carry on the business of the Partnership.

 

Notwithstanding any other provision of this Partnership Agreement to the contrary, the Bankruptcy or the occurrence of any event set forth in Section 14-9-602(a)(4)-(5) of the Act of a general partner shall not cause such general partner to cease to be a general partner of the Partnership and upon the occurrence of such an event, the Partnership shall continue without dissolution.

 

(b)               Notwithstanding any other provision of this Partnership Agreement, the Bankruptcy of a Limited Partner shall not cause the Limited Partner to cease to be a limited partner of the Partnership and upon the occurrence of such an event, the Partnership shall continue without dissolution.

 

(c)                Notwithstanding any other provision of this Partnership Agreement, each of the General Partner and the Limited Partner waive any right they might have to agree in writing to dissolve the Partnership upon the Bankruptcy of the General Partner or a Limited Partner, or upon the occurrence of an event that causes the General Partner or a Limited Partner to cease to be a partner of the Partnership.

 

(d)               In the event of dissolution, the Partnership shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Partnership in an orderly manner), and the assets of the Partnership shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(e)                The Partnership shall terminate when (i) all of the assets of the Partnership, after payment of or due provision for all debts, liabilities and obligations of the Partnership shall have been distributed to the Partners in the manner provided for in this Partnership Agreement and (ii) the Certificate of Limited Partnership shall have been canceled in the manner required by the Act.

 

Section 23.             Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Partnership Agreement, to the fullest extent permitted by law, each of the General Partner and the Limited Partner hereby irrevocably waives any right or power that such Person might have to cause the Partnership or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Partnership, to compel any sale of all or any portion of the assets of the Partnership pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Partnership. No Partner shall have any interest in any specific assets of the Partnership, and no Partner shall have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interests of the General Partner and the Limited Partner in the Partnership is personal property.

 

8


 

Section 24.             Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Partnership Agreement shall be for the benefit of or enforceable by any creditor of the Partnership or by any creditor of the General Partner or the Limited Partner. Nothing in this Partnership Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Partnership Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.             Severability of Provisions.

 

Each provision of this Partnership Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Partnership Agreement which are valid, enforceable and legal.

 

Section 26.             Entire Agreement.

 

This Partnership Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

 

Section 27.             Reserved.

 

Section 28.             Governing Law.

 

This Partnership Agreement shall be governed by and construed under the laws of the State of Georgia (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 29.             Amendments.

 

This Partnership Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the General Partner.

 

Section 30.             Counterparts.

 

This Partnership Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Partnership Agreement and all of which together shall constitute one and the same instrument.

 

Section 31.             Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Partnership, to the Partnership at its address in Section 2, (b) in the case of the General Partner, to the General Partner at its address as listed on Schedule B attached hereto, (c) in the case of the Limited

 

9


 

Partner, to the Limited Partner at its address as listed on Schedule B attached hereto and (c) in the case of any of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 32.             Certification of Partnership Interests.

 

The Partnership hereby irrevocably elects that all partnership interests in the Partnership shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Georgia, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Georgia (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of partnership interests to the General Partner in accordance with the provisions of this Agreement, the Partnership shall issue one or more Certificates in the name of the General Partner. “Certificate” means a non- negotiable certificate issued and endorsed by the Partnership substantially in the form of Schedule C hereto, which evidences the ownership of one or more partnership interests in the Partnership. Each Certificate shall bear the following legend: “This certificate evidences an interest in ClubCorp Golf of Georgia, L.P. Each partnership interest in the Partnership shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Georgia, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Partnership shall maintain books for the purpose of registering the transfer of the partnership interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the partnership interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Partnership.

 

[SIGNATURE PAGE FOLLOWS]

 

10


 

In Witness Whereof, the; undersigned, intending to be legally bound hereby, have duly executed this Partnership Agreement as of the 10th day of November, 2010.

 

 

LIMITED PARTNER:

 

 

 

 

CCA GOLF COURSE HOLDCO, LLC

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Name:

Ingrid Keiser

 

 

 

Title:

Secretary

 

 

 

GENERAL PARTNER:

 

 

 

 

CLUBCORP GEN PAR OF TEXAS, L.L.C.

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Name:

Ingrid Keiser

 

 

 

Title:

Secretary

 

Signature Page to the Third A&R LP Agreement — ClubCorp Golf of Georgia, L. P.

 

 

SCHEDULE A

 

Definitions

A.    Definitions

 

When used in this Partnership Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Partnership Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Applicable Laws” shall mean all existing and future federal, state and local laws, orders, ordinances, governmental rules and regulations and court orders and is expressly deemed to include all zoning laws and environmental laws.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated.

 

“Certificate of Limited Partnership” means the Certificate of Limited Partnership of the Partnership filed with the Secretary of State of the State of Georgia on March 8, 1999, as amended or amended and restated from time to time.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

A-1


 

“General Partner” means ClubCorp Gen Par of Texas, L.L.C., as the initial general partner of the Partnership, and any Person admitted as a substitute or an additional general partner of the Partnership pursuant to the provisions of this Partnership Agreement, each in its capacity as a general partner of the Partnership.

 

“Limited Partner” means CCA Golf Course Holdco, LLC, as the initial limited partner of the Partnership, and any Person admitted as a substitute or an additional limited partner of the Partnership pursuant to the provisions of this Partnership Agreement, each in its capacity as a limited partner of the Partnership.

 

“Partners” means any Person who is admitted as a partner of the Partnership, whether a General Partner, a Limited Partner, or both.

 

“Partnership” means ClubCorp Golf of Georgia, L.P., a Georgia limited partnership.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, partnership, limited partnership, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.    Rules of Construction

 

Definitions in this Partnership Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Partnership Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Partnership Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Partnership Agreement.

 

A-2


 

SCHEDULE B

 

Partners

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Partnership
Interest

 

CCA Golf Course Holdco, LLC

 

3030 LBJ Freeway,
Dallas, Texas 75381

 

$990

 

99%

 

 

 

 

 

 

 

 

 

ClubCorp Gen Par of Texas, L.L.C.

 

3030 LBJ Freeway,
Dallas, Texas 75381

 

$10

 

1%

 

 

B-1


 

SCHEDULE C

 

CERTIFICATE FOR CLUBCORP GOLF OF GEORGIA, L.P.

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number

 

% of Interests

 

ClubCorp Golf of Georgia, L.P., a Georgia limited partnership (the “Partnership”), hereby certifies that                         (the “Holder”) is the registered owner of             % of the partnership interests in the Partnership (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF THE PARTNERSHIP, DATED AS OF NOVEMBER , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Partnership will furnish a copy of the Agreement to the Holder without charge upon written request to the Partnership at its principal place of business. The Partnership maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in ClubCorp Golf of Georgia, L.P. Each partnership interest in the Partnership shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Georgia, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Georgia without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Partnership has caused this Certificate to be executed by [                         ] as of the date set forth below.

 

Dated:

 

 

 

 

Name:

 

Title:

 

C-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF CLUBCORP GOLF OF GEORGIA, L.P.)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                                (print or typewrite name of Transferee),                              (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                              (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                       , as attorney-in-fact, to transfer the same on the books and records of the Partnership, with full power of substitution in the premises.

 

 

Dated:

 

 

Signature:

 

 

(Transferor)

 

 

Address:

 

 

 

 

 

 

 

 

C-2


 EX-3.44(A) 88 a2202241zex-3_44a.htm EX-3.44(A)

Exhibit 3.44(a)

 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP GOLF OF NORTH CAROLINA, L.L.C.

 

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

 

FIRST: The name of the limited liability company (hereinafter called the “limited liability company”) is ClubCorp Golf of North Carolina, L.L.C.

 

SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.

 

 

Executed on March 12, 1999.

 

 

 

 

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee, Authorized Person

 

 

STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/12/1999
991098987 - 3016487

 


 EX-3.44(B) 89 a2202241zex-3_44b.htm EX-3.44(B)

Exhibit 3.44(b)

 

THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CLUBCORP GOLF OF NORTH CAROLINA, L.L.C.

 

This Third Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Golf of North Carolina, L.L.C. (the “Company”), is entered into by FFFC Golf Acquisitions, L.L.C., as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on March 12, 1999, Thomas T. Henslee executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Second Amended and Restated Limited Liability Company Agreement of ClubCorp Golf of North Carolina, L.L.C., dated as of April 1, 2007 entered into by FFFC Golf Acquisitions, L.L.C., as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.                    Name.

 

The name of the limited liability company continued hereby is ClubCorp Golf of North Carolina, L.L.C.

 

Section 2.                    Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.                    Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.                    Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.                    Members.

 

(a)                       The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the original Limited Liability Company Agreement of the Company dated as of March 12, 1999.

 

(b)                      The Member may act by written consent.

 

Section 6.                    Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.                    Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                       to own those certain parcels of real property, together with all improvements located thereon, currently known as (A) the Devil’s Ridge Golf Club, in the City of Holly Springs, State of North Carolina, (B) the Lochmere Golf Club, in the City of Cary, State of North Carolina, (C) the Nags Head Golf Links, in the City of Nags Head, State of North Carolina, and (D) The Neuse Golf Club, in the City of Clayton, State of North Carolina (the “Property”) and to operate or cause the Property to be operated;

 

(b)                      to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                       to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

2


 

(d)                      to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                       to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.                    Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.                    Management.

 

(a)                       Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)                      Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                       Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)                      Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the

 

3


 

Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                       Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                         Committees of Directors.

 

(i)                                     The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                                  In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                               Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)                      Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)                      Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                          Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions

 

4


 

of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.              Reserved.

 

Section 11.              Officers.

 

(a)                       Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)                      President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                       Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)                      Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member; if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant

 

5


 

Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                       Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                         Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)                      Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.              Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.              Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.              Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement.

 

6


 

The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.              Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.              Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.              Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.              Reserved.

 

Section 19.              Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.              Exculpation and Indemnification.

 

(a)                       Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the

 

7


 

authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)                      To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member and shall not have personal liability on account thereof.

 

(c)                       To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)                      A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                       To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                         The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.              Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the

 

8


 

Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.              Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.              Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.              Dissolution.

 

(a)                       The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the

 

9


 

event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)                      Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                       In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)                      The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.              Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.              Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.              Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

10

 

Section 28.              Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.              Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.              Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.              Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.              Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.              Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.              Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

11


 

waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend:

 

This certificate evidences an interest in ClubCorp Golf of North Carolina, L.L.C. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

FFFC GOLF ACQUISITIONS, L.L.C.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name: Ingrid Keiser

 

 

Title: Secretary

 

Signature Page to the Third A&R LLC Agreement — ClubCorp Golf of North Carolina L.L.C.

 


 

SCHEDULE A

 

Definitions

 

A.                      Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Third Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on March 12, 1999 as amended or amended and restated from time to time.

 

“Company” means ClubCorp Golf of North Carolina, L.L.C., a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the Act.

 

“Member” means FFFC Golf Acquisitions, L.L.C, a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

FFFC Golf Acquisitions, L.L.C

 

FFFC Golf Acquisitions, L.L.C.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

 

DIRECTORS

 

 

1.

Eric L. Affeldt

 

 

2.

Eric C. Resnick

 

 

3.

Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CLUBCORP GOLF OF NORTH CAROLINA, L.L.C.

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-2

100% of Interests

 

ClubCorp Golf of North Carolina, L.L.C., a Delaware limited liability company (the “Company”), hereby certifies that FFFC Golf Acquisitions, L.L.C (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER      , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in ClubCorp Golf of North Carolina, L.L.C. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                                       ] as of the date set forth below.

 

 

Dated: as of

 

 

 

 

Name:

 

Title:

 

E-2


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF CLUBCORP GOLF OF NORTH CAROLINA, L.L.C.)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                               (print or typewrite name of Transferee),                            (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                         (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                                    , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

(Tansferor)

 

 

Address:

 

 

 

 

 

 

 

 

E-3


 EX-3.45(A) 90 a2202241zex-3_45a.htm EX-3.45(A)

Exhibit 3.45(a)

 

 

 

 

 

FILED
In the Office of the
Secretary of State of Texas

 

MAR 01 1999

 

Corporations Section

 

CERTIFICATE OF LIMITED PARTNERSHIP

 

OF

 

CLUBCORP GOLF OF TEXAS, L.P.

 

To the Secretary of State
State of Texas

 

Pursuant to the provisions of the Texas Revised Limited Partnership Act, it is hereby certified that

 

1  The name of the limited partnership (hereinafter referred to as the “limited partnership”) to be formed is ClubCorp Golf of Texas, L.P.

 

2  The address of the registered office and the name and address of the registered agent of the limited partnership required to be maintained in the State of Texas by Section 1.06 of the Texas Revised Limited Partnership Act are Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 800 Brazos, Austin, Texas 78701

 

3  The address of the principal office of the limited partnership in the United States of America where records are to be kept or made available under Section 1.07 of the Texas Revised Limited Partnership Act is 3030 LBJ Freeway, Dallas, Texas 75381

 

4  The name, the mailing address, and the street address of the business of the general partner of the limited partnership is 3030 LBJ Freeway, Dallas, Texas 75381.

 

5  The limited partnership is to be formed at the time of filing this Certificate of Limited Partnership with the Secretary of State of the State of Texas

 

6  The undersigned constitutes the general partner of the limited partnership.

 

Executed on February 24, 1999

 

 

 

ClubCorp Gen Par of Texas, L.L.C., its general partner

 

 

 

 

 

By

/s/ Thomas T Henslee

 

 

Thomas T Henslee, Secretary

 


 EX-3.45(B) 91 a2202241zex-3_45b.htm EX-3.45(B)

Exhibit 3.45(b)

 

THIRD AMENDED AND RESTATED

LIMITED PARTNERSHIP AGREEMENT

OF

CLUBCORP GOLF OF TEXAS, L.P.

 

This Third Amended and Restated Limited Partnership Agreement (together with the schedules attached hereto, this “Partnership Agreement”) of ClubCorp Golf of Texas, L.P., a Texas limited partnership (the “Partnership”), is entered into by ClubCorp Gen Par of Texas, L.L.C., a Delaware limited liability company, as the general partner (the “General Partner”) and CCA Golf Course Holdco, LLC, a Delaware limited liability company, as the limited partner (the “Limited Partner” and together with the General Partner, the “Partners”). Capitalized terms used and not otherwise defined herein have the respective meanings set forth on Schedule A hereto.

 

WHEREAS, on March 1, 1999, the General Partner executed and filed the Certificate of Limited Partnership with the Secretary of State of the State of Texas in accordance with and pursuant to the Texas Revised Uniform Limited Partnership Act.

 

WHEREAS, the Partnership is currently governed by that certain Second Amended and Restated Agreement of Limited Partnership of ClubCorp Golf of Texas, L.P., dated as of December 26, 2006, as heretofore amended, entered into by ClubCorp Gen Par of Texas, L.L.C. as the General Partner, the Limited Partner and Suzanne M. Hay as the Springing Limited Partner (the “Existing Agreement”).

 

WHEREAS, the Partnership became subject to the Texas Business Organizations Code (the “TBOC”) as of January 1, 2010.

 

WHEREAS, the Partners desire to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.               Name.

 

The name of the limited partnership continued hereby is ClubCorp Golf of Texas, L.P.

 

Section 2.               Principal Business Office.

 

The principal business office of the Partnership shall be located at 3030 LBJ Freeway, Dallas, Texas 75381, or at such other location as may hereafter be determined by the General Partner.

 


 

Section 3.               Registered Office.

 

The address of the registered office of the Partnership in the State of Texas is in care of the registered agent of the Partnership.

 

Section 4.               Registered Agent.

 

(a)           The name and address of the registered agent of the Partnership for service of process of the Partnership in the State of Texas are as set forth in the Certificate of Limited Partnership, as the same may be amended from time to time.

 

Section 5.               Partners.

 

(a)           The mailing addresses of the Partners are set forth on Schedule B attached hereto.

 

(b)           The Partners may act by written consent.

 

Section 6.               Certificates and Duration.

 

The General Partner executed, delivered and filed the Certificate of Limited Partnership of the Partnership with the Secretary of State of the State of Texas. The General Partner or an authorized designee shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in any jurisdiction in which the Partnership may wish to conduct business.

 

The existence of the Partnership as a separate legal entity shall continue until the earlier of January 1, 2052, or until its business and affairs are wound up as provided in Section 22 of this Partnership Agreement.

 

Section 7.               Purposes.

 

The purpose to be conducted or promoted by the Partnership is to engage in the following activities:

 

(a)           to own those certain parcels of real property, together with all improvements located thereon, currently known as (A) Clubs of Lakeway (Live Oak and Yaupon), in the City of Austin, State of Texas, (B) the Stonebridge Country Club, the City of McKinney, State of Texas, and (C) Trophy Club Country Club, in the City of Trophy, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)           to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Partnership’s property;

 

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(d)           to engage in any activities necessary to authorize, execute and deliver any other agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)           to engage in such lawful activities and to exercise such powers permitted to limited partnerships organized under the laws of the State of Texas.

 

Section 8.               Powers.

 

Subject to Section 7, the Partnership and the General Partner on behalf of the Partnership (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited partnerships formed pursuant to the laws of the State of Texas.

 

Section 9.               Management.

 

(a)           Authorized Representatives. The business and affairs of the Partnership shall be managed by the General Partner.

 

(b)           Powers. Subject to Section 9(c), the General Partner shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise possessed by general partners under the laws of the State of Texas. Subject to Section 7, the General Partner has the authority to bind the Partnership. Except as provided herein, the Limited Partner shall have no part in the operation or management of the Partnership and shall have no authority or right to act on behalf of or to bind the Partnership in connection with any matter.

 

Section 10.             Reserved.

 

Section 11.             Limited Liability.

 

Except as provided herein or by the TBOC, the General Partner shall have the liabilities of a partner in a partnership without limited partners. Except as otherwise expressly required by law, the Limited Partner, in its capacity as such, shall have no liability in excess of (a) the amount of its capital contribution to the Partnership, (b) its share of any undistributed profits and assets of the Partnership, (c) its obligation to make other payments expressly provided for in this Partnership Agreement, and (d) the amount of any distributions wrongfully distributed to it.

 

Section 12.             Capital Contributions.

 

The General Partner and the Limited Partner have contributed to the Partnership property of an agreed value as listed on Schedule B attached hereto.

 

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Section 13.             Additional Contributions.

 

No Partner is required to make any additional capital contribution to the Partnership. However, a Partner may make additional capital contributions to the Partnership at any time upon the written consent of the General Partner. To the extent that a Partner makes an additional capital contribution to the Partnership, the General Partner shall revise Schedule B of this Partnership Agreement. The provisions of this Partnership Agreement, including this Section 13, are intended to benefit the General Partner and the Limited Partner and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Partnership (and no such creditor of the Partnership shall be a third-party beneficiary of this Partnership Agreement) and the Limited Partner shall have no duty or obligation to any creditor of the Partnership to make any contribution to the Partnership or to issue any call for capital pursuant to this Partnership Agreement.

 

Section 14.             Allocation of Profits and Losses.

 

The Partnership’s profits and losses shall be allocated 1% to the General Partner and 99% to the Limited Partner.

 

Section 15.             Distributions.

 

Distributions shall be made 1% to the General Partner and 99% to the Limited Partner at the times and in the aggregate amounts determined by the General Partner. Notwithstanding any provision to the contrary contained in this Partnership Agreement, the Partnership shall not make a distribution to a Partner on account of its interest in the Partnership if such distribution would violate the TBOC or any other applicable law.

 

Section 16.             Books and Records.

 

The General Partner shall keep or cause to be kept complete and accurate books of account and records with respect to the Partnership’s business. The books of the Partnership shall at all times be maintained by the General Partner. The Partnership’s books of account shall be kept using the method of accounting determined by the General Partner. The Partnership’s independent auditor, if any, shall be an independent public accounting firm selected by the General Partner.

 

Section 17.             Other Business.

 

The Limited Partner, the General Partner, and any Affiliate of the General Partner, or the Limited Partner may engage in or possess an interest in other business ventures (unconnected with the Partnership) of every kind and description, independently or with others. The Partnership shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Partnership Agreement notwithstanding any other provision to the contrary at law or in equity.

 

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Section 18.             Exculpation and Indemnification.

 

(a)           To the fullest extent permitted by applicable law, neither the General Partner, nor the Limited Partner nor any employee or agent of the Partnership nor any employee, representative, manager, agent or Affiliate of the General Partner or the Limited Partner (collectively, the “Covered Persons”) shall be liable to the Partnership or any other Person who is a party to or otherwise bound by the terms of this Partnership Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Partnership and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Partnership Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)           To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Partnership for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Partnership and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Partnership Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Partnership shall be provided out of and to the extent of Partnership assets only, and the General Partner and the Limited Partner.

 

(c)           To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Partnership of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)           A Covered Person shall be fully protected in relying in good faith upon the records of the Partnership and upon such information, opinions, reports or statements presented to the Partnership by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Partnership, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Partners might properly be paid.

 

(e)           To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or to any other Covered Person, a Covered Person acting under this Partnership Agreement shall not be liable to the Partnership or to any other Covered Person for its good faith reliance on the provisions of this Partnership Agreement or any approval or authorization granted by the Partnership or any other Covered Person. The provisions of this Partnership Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the

 

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General Partner and the Limited Partner to replace such other duties and liabilities of such Covered Person.

 

(f)            The foregoing provisions of this Section 18 shall survive any termination of this Partnership Agreement.

 

Section 19.             Assignments.

 

If a General Partner transfers all of its general partner interest in the Partnership pursuant to this Section 19 and ceases to be a Partner, the transferee shall be admitted to the Partnership as a general partner of the Partnership upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Partnership Agreement, which instrument may be a counterpart signature page to this Partnership Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor General Partner shall cease to be a general partner of the Partnership, and the parties hereto agree that following such an assigning General Partner ceasing to be a general partner of the Partnership in accordance with this Partnership Agreement, any remaining general partners of the Partnership, including a substitute General Partner, are hereby authorized to, and shall, continue the business of the Partnership without termination. Without limiting the foregoing, the General Partner may hypothecate, pledge or assign for security purposes any part of all of its interest in the Partnership to any other Person and remain a General Partner entitled to exercise rights and receive distributions and allocations pursuant to this Partnership Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Partnership as a Partner. Notwithstanding anything in this Partnership Agreement to the contrary, any successor to a General Partner by merger or consolidation shall, without further act, be the General Partner hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Partnership Agreement and the Partnership shall continue without termination.

 

A Limited Partner may assign in whole or in part its limited partner interest in the Partnership. If a Limited Partner transfers all of its limited partner interest in the Partnership pursuant to this Section 19, the transferee shall be admitted to the Partnership as a limited partner of the Partnership upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Partnership Agreement, which instrument may be a counterpart signature page to this Partnership Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Limited Partner shall cease to be a limited partner of the Partnership. Without limiting the foregoing, the Limited Partner may hypothecate, pledge or assign for security purposes any part of all of its interest in the Partnership to any other Person and remain a Limited Partner entitled to exercise rights and receive distributions and allocations pursuant to this Partnership Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Partnership as a Partner. Notwithstanding anything in this Partnership Agreement to the contrary, any successor to a Limited Partner by merger or consolidation shall, without further act, be the Limited Partner hereunder, and such merger or consolidation shall not

 

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constitute an assignment for purposes of this Partnership Agreement and the Partnership shall continue without termination.

 

Section 20.             Resignation.

 

If a General Partner resigns, an additional general partner of the Partnership shall be admitted to the Partnership, subject to Section 21, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Partnership Agreement, which instrument may be a counterpart signature page to this Partnership Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning General Partner shall cease to be a general partner of the Partnership.

 

If a Limited Partner resigns, an additional limited partner of the Partnership shall be admitted to the Partnership, subject to Section 21, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of the Partnership Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning limited partner shall cease to be a limited partner of the Partnership.

 

Section 21.             Admission of Additional Partners.

 

One or more additional limited partners of the Partnership may be admitted to the Partnership with the written consent of the General Partner.

 

Section 22.             Events Requiring Winding Up.

 

(a)           The Partnership and its business shall be wound up upon the first to occur of the following:

 

(i)            the occurrence of an event of withdrawal (as defined in the TBOC) with respect to a General Partner, other than an event of withdrawal set forth in Section 153.155(a)(4)-(5) of the TBOC; provided, the Partnership shall not be required to be wound up in connection with any of the event specified in this clause (i) if (1) at the time of the occurrence of such event there is at least one remaining general partner of the Partnership who is hereby authorized to and shall carry on the business of the Partnership, or (2) if at such time there is no remaining General Partner, if within 120 days after such event of withdrawal, the Limited Partners agree in writing or vote to continue the business of the Partnership and to appoint, effective as the day of withdrawal, one or more additional General Partners, or (3) the Partnership is continued in a manner permitted by the TBOC or this Partnership Agreement;

 

(ii)           there are no limited partners of the Partnership unless the business of the Partnership is continued in accordance with the TBOC and this Partnership Agreement; or

 

7


 

(iii)          the entry of a decree by a court requiring the winding up or termination of the Partnership as described in Section 11.051(5) of the TBOC.

 

Notwithstanding any other provision of this Partnership Agreement to the contrary, upon the occurrence of an event that causes the last remaining limited partner in the Partnership to cease to be a limited partner in the Partnership, to the fullest extent permitted by law, all of the Partners agree that the personal representative of such limited partner is hereby authorized to, and shall within 90 days after the occurrence of the event that terminated the continued membership of such limited partner in the Partnership, agree in writing (i) to continue the Partnership, and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute limited partner of the Partnership, effective as of the occurrence of the event that terminated the continued membership of the last remaining limited partner of the Partnership in the Partnership.

 

Notwithstanding any other provision of this Partnership Agreement, upon the occurrence of any event that results in any general partner ceasing to be a general partner in the Partnership under the TBOC, to the fullest extent permitted by law, if at the time of the occurrence of such event there is at least one remaining general partner of the Partnership, such remaining general partner(s) of the Partnership is (are) hereby authorized to and, to the fullest extent permitted by law, shall carry on the business of the Partnership.

 

Notwithstanding any other provision of this Partnership Agreement to the contrary, the Bankruptcy or the occurrence of any event set forth in Section 153.155(a)(4)-(5) of the TBOC of a general partner shall not cause such general partner to cease to be a general partner of the Partnership and upon the occurrence of such an event, the Partnership shall continue without termination.

 

(b)           Notwithstanding any other provision of this Partnership Agreement, the Bankruptcy of a Limited Partner shall not cause the Limited Partner to cease to be a limited partner of the Partnership and upon the occurrence of such an event, the Partnership shall continue without termination.

 

(c)           Notwithstanding any other provision of this Partnership Agreement, each of the General Partner and the Limited Partner waive any right they might have to agree in writing to terminate the Partnership upon the Bankruptcy of the General Partner or a Limited Partner, or upon the occurrence of an event that causes the General Partner or a Limited Partner to cease to be a partner of the Partnership.

 

(d)           Upon the occurrence of an event requiring winding up, the Partnership shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Partnership in an orderly manner), and the assets of the Partnership shall be applied in the manner, and in the order of priority, set forth in the TBOC.

 

(e)           The Partnership shall terminate when (i) all of the assets of the Partnership, after payment of or due provision for all debts, liabilities and obligations of the Partnership shall have been distributed to the Partners in the manner provided for in this Partnership Agreement and (ii)

 

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a Certificate of Termination shall have been filed with the Secretary of State of the State of Texas in the manner required by the TBOC.

 

Section 23.             Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Partnership Agreement, to the fullest extent permitted by law, each of the General Partner and the Limited Partner hereby irrevocably waives any right or power that such Person might have to cause the Partnership or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Partnership, to compel any sale of all or any portion of the assets of the Partnership pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the liquidation, winding up or termination of the Partnership. No Partner shall have any interest in any specific assets of the Partnership, and no Partner shall have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the General Partner and the Limited Partner in the Partnership is personal property.

 

Section 24.             Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Partnership Agreement shall be for the benefit of or enforceable by any creditor of the Partnership or by any creditor of the General Partner, the Limited Partner. Nothing in this Partnership Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Partnership Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.             Severability of Provisions.

 

Each provision of this Partnership Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Partnership Agreement which are valid, enforceable and legal.

 

Section 26.             Entire Agreement.

 

This Partnership Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

 

Section 27.             Reserved.

 

Section 28.             Governing Law.

 

This Partnership Agreement shall be governed by and construed under the laws of the State of Texas (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

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Section 29.     Amendments.

 

This Partnership Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the General Partner.

 

Section 30.     Counterparts.

 

This Partnership Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Partnership Agreement and all of which together shall constitute one and the same instrument.

 

Section 31.    Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Partnership, to the Partnership at its address in Section 2, (b) in the case of the General Partner, to the General Partner at its address as listed on Schedule B attached hereto, (c) in the case of the Limited Partner, to the Limited Partner at its address as listed on Schedule B attached hereto and (c) in the case of any of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 32.     Certification of Partnership Interests.

 

The Partnership hereby irrevocably elects that all partnership interests in the Partnership shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Texas, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Texas (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of partnership interests to the General Partner in accordance with the provisions of this Agreement, the Partnership shall issue one or more Certificates in the name of the General Partner. “Certificate” means a non-negotiable certificate issued and endorsed by the Partnership substantially in the form of Schedule C hereto, which evidences the ownership of one or more partnership interests in the Partnership. Each Certificate shall bear the following legend: “This certificate evidences an interest in ClubCorp Golf of Texas, L.P. Each partnership interest in the Partnership shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Texas, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.”

 

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This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation.  The Partnership shall maintain books for the purpose of registering the transfer of the partnership interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the partnership interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Partnership.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Partnership Agreement as of the 10th day of November, 2010.

 

 

 

LIMITED PARTNER:

 

 

 

 

 

 

CCA GOLF COURSE HOLDCO, LLC

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Name:

Ingrid Keiser

 

 

 

Title:

Secretary

 

 

 

 

 

 

 

 

 

GENERAL PARTNER:

 

 

 

 

 

 

CLUBCORP GEN PAR OF TEXAS, L.L.C.

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Name:

Ingrid Keiser

 

 

 

Title:

Secretary

 

 

Signature Page to the Third A&R LP Agreement —ClubCorp Golf of Texas, L.P.

 


 

SCHEDULE A

 

Definitions

 

A.        Definitions

 

When used in this Partnership Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Applicable Laws” shall mean all existing and future federal, state and local laws, orders, ordinances, governmental rules and regulations and court orders and is expressly deemed to include all zoning laws and environmental laws.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated.

 

“Certificate of Limited Partnership” means the Certificate of Limited Partnership of the Partnership filed with the Secretary of State of the State of Texas on March 1, 1999, as amended or amended and restated from time to time.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“General Partner” means ClubCorp Gen Par of Texas, L.L.C., as the initial general partner of the Partnership, and any Person admitted as a substitute general partner of the

 

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Partnership pursuant to the provisions of this Partnership Agreement, each in its capacity as a general partner of the Partnership.

 

“Limited Partner” means CCA Golf Course Holdco, LLC, as the initial limited partner of the Partnership, and any Person admitted as a substitute limited partner of the Partnership pursuant to the provisions of this Partnership Agreement, each in its capacity as a limited partner of the Partnership.

 

“Partners” means any Person who is admitted as a partner of the Partnership, whether a General Partner, a Limited Partner, or both.

 

“Partnership” means ClubCorp Golf of Texas, L.P., a Texas limited partnership.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, partnership, limited partnership, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

“TBOC” has the meaning set forth in the preamble to this Partnership Agreement.

 

B.         Rules of Construction

 

Definitions in this Partnership Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Partnership Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Partnership Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Partnership Agreement.

 

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SCHEDULE B

 

Partners

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Partnership
Interest

 

CCA Golf Course Holdco, LLC

 

3030 LBJ Freeway,
Dallas, Texas 75381

 

$990

 

99%

 

 

 

 

 

 

 

 

 

ClubCorp Gen Par of Texas, L.L.C.

 

3030 LBJ Freeway,
Dallas, Texas 75381

 

$10

 

1%

 

 

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SCHEDULE C

 

CERTIFICATE FOR CLUBCORP GOLF OF TEXAS, L.P.

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number       

 

       % of Interests

 

ClubCorp Golf of Texas, L.P., a Texas limited partnership (the “Partnership”), hereby certifies that                             (the “Holder”) is the registered owner of            % of the partnership interests in the Partnership (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF THE PARTNERSHIP, DATED AS OF DECEMBER 26, 2006, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Partnership will furnish a copy of the Agreement to the Holder without charge upon written request to the Partnership at its principal place of business. The Partnership maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in ClubCorp Golf of Texas, L.P. Each partnership interest in the Partnership shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Texas, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Texas without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Partnership has caused this Certificate to be executed by [                          ] as of the date set forth below.

 

 

Dated:

 

 

 

 

 

Name:

 

 

Title:

 

C-1


 

(REVERSE SIDE OF CERTIFICATE

FOR INTERESTS OF CLUBCORP GOLF OF TEXAS, L.P.)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                               (print or typewrite name of Transferee),                          (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                       (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                      , as attorney-in-fact, to transfer the same on the books and records of the Partnership, with full power of substitution in the premises.

 

 

Dated:

 

 

Signature:

 

 

 

(Transferor)

 

Address:   

 

 

 

 

 

 

 

 

 

C-2


 EX-3.46(A) 92 a2202241zex-3_46a.htm EX-3.46(A)

Exhibit 3.46(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP GRANITE BAY MANAGEMENT, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Granite Bay Management, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Granite Bay Management, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own ownership interests and act as an equity holder or partner in Granite Bay Golf Club, Inc. and Granite Bay Limited Partnership (collectively, the “Property”) and to operate or cause the Granite Bay Golf Club, located in the City of Granite Bay, State of California, to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.46(B) 93 a2202241zex-3_46b.htm EX-3.46(B)

Exhibit 3.46(b)

 

BY-LAWS

 

OF

 

CLUBCORP GRANITE BAY MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.47(A) 94 a2202241zex-3_47a.htm EX-3.47(A)

Exhibit 3.47(a)

 

CERTIFICATE OF AMENDMENT

TO

ARTICLES OF INCORPORATION

OF

CLUBCORP GRAPHICS, INC.

 

I the undersigned as Secretary of ClubCorp Graphics, Inc. (the “Corporation”) do hereby certify:

 

A.       That the Board of Directors by written resolution dated November 9, 2010, adopted a resolution to amend the original Articles of Incorporation as follows:

 

B.       Article III of the is hereby deleted in its entirety and replaced with the following:

 

ARTICLE III

 

The purpose for which the Corporation is organized is to engage in the businesses of establishing, developing, building, designing, constructing, maintaining, managing, operating, buying, selling, acquiring, leasing, trading, and dealing in one more private clubs and/or restaurants for the providing of refreshments, entertainment, exercise, health, and athletic facilities and social diversions for their members and guests and to afford all customary privileges and accommodations of a private club for profit, and to engage in such other related activities and make such other investments as the Board of Directors of the corporation may from time to time deem advisable, both within and without the State of Florida, and to engage in any lawful activities and to exercise such powers permitted to corporations under the Florida Business Corporation Act.

 

C.       The number of shares of the Corporation outstanding and entitled to vote on such amendment to the Existing Articles is 1,000; that the said change to Article III to the Existing Articles has been consented to and approved by a majority vote of the stockholders holding at least a majority of stock outstanding and entitled to vote thereon by written shareholder consent dated November 9, 2010. The number of votes cast was sufficient for approval.

 

Dated as of November 10, 2010.

 


 

 

CLUBCORP GRAPHICS, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 

 

FILED

 

99 JAN 26 PM 4:54

 

SECRETARY OF STATE

TALLAHASSEE, FLORIDA

 

CERTIFICATE OF AMENDMENT

TO

ARTICLES OF INCORPORATION

OF

CLUB GRAPHICS, INC.

 

We the undersigned as President and Secretary of CLUB GRAPHICS, INC. do hereby certify:

 

That the Board of Directors of said corporation at a meeting duly convened and held on the 4th day of January, 1999, adopted a resolution to amend the original Articles of Incorporation, as follows:

 

Article I shall be amended to read as follows:

 

The name of this corporation is: “ClubCorp Graphics, Inc.”.

 

The number of shares of the corporation outstanding and entitled to vote on such amendment to the Articles of Incorporation is 1,000; that the said change of name and amendment to the Articles of Incorporation has been consented to and approved by a majority vote of the stockholders holding at least a majority of stock outstanding and entitled to vote thereon at a special meeting of Shareholders duly convened and held on January 4, 1999. The number of votes cast was sufficient for approval.

 

 

Dated: January 4, 1999.

 

 

 

 

CLUB GRAPHICS, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ James M. Hinckley

 

 

 

James M. Hinckley, President

 

 

 

 

 

 

By:

/s/ Thomas T. Henslee

 

 

 

Thomas T. Henslee, Secretary

 


 

 

FILED

SECRETARY OF STATE

DIVISION OF CORPORATIONS

 

94 NOV 14 AM 11:26

 

ARTICLES OF INCORPORATION

 

OF

 

CLUB GRAPHICS, INC.

 

The undersigned natural person, of the age of twenty-one (21) years or more, acting as incorporator of a corporation under the Florida General Corporation Act, hereby adopts the following Articles of Incorporation for such corporation.

 

ARTICLE ONE

 

The name of the corporation is Club Graphics, Inc.. Its mailing address is 3001 Countryside Boulevard, Clearwater, Florida 34621.

 

ARTICLE TWO

 

The period of its duration is perpetual.

 

ARTICLE THREE

 

The purpose for which the corporation is organized is to engage in the businesses of establishing, developing, building, designing, constructing, maintaining, managing, operating, buying, selling, acquiring, leasing, trading, and dealing in one or more private clubs and/or restaurants for the providing of refreshments, entertainment, exercise, health, and athletic facilities and social diversions for their members and guests and to afford all customary privileges and accommodations of a private club for profit, and to engage in such other related activities and make such other investments as the Board of Directors of the corporation may from time to time deem advisable, both within and without the State of Florida, and to do all things incidental thereto or connected therewith which are necessary, proper, advisable, or convenient in the premises and are not forbidden by law.

 

ARTICLE FOUR

 

The aggregate number of shares of capital stock which the corporation has authority to issue is one thousand (1,000) shares of common stock of the par value of One Dollar ($1.00). The shares shall be designated as common stock and shall have identical rights, privileges, and powers in every respect. Cumulative voting shall not be allowed and no shareholder shall have any preemptive rights.

 

1


 

ARTICLE FIVE

 

The corporation will not commence business until it has received for the issuance of its shares consideration of the value of not less than Five Hundred Dollars ($500.00).

 

ARTICLE SIX

 

The registered agent of the corporation shall be CT Corporation System, whose address is 1200 South Pine Island Road, Plantation, Florida 33324.

 

ARTICLE SEVEN

 

The number of directors constituting the initial board of directors is three (3), and the names and addresses of the persons who shall serve as directors until the first annual meeting of the shareholders or until their successors are elected and qualified are:

 

Murry E. Page

 

15770 Dallas Parkway,

5th Floor

Dallas, Texas 75248

 

 

 

Randolph D. Addison

 

15770 Dallas Parkway,

5th Floor

Dallas, Texas 75248

 

 

 

Sol S. Reifer

 

15770 Dallas Parkway,

5th Floor

Dallas, Texas 75248

 

ARTICLE EIGHT

 

The name and address of the incorporator is Linda Blanton-Myers, 15770 Dallas Parkway, 5th Floor, Dallas, Texas 75248.

 

ARTICLE NINE

 

The holders of shares of stock of the corporation shall have no preemptive rights.

 

ARTICLE TEN

 

The corporation reserves the right to amend, alter, change, or repeal any provision contained in these Articles of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. The Board of Directors shall have the power to make and alter the Bylaws of the corporation and to fix the amount to be reserved as working capital over and above its capital stock paid in and to authorize

 

2


 

and cause to be executed mortgages and liens upon the real and personal property of the corporation.

 

IN WITNESS WHEREOF, the undersigned, being the original subscriber hereinabove named, has hereunto set her hand this 3rd day of November, 1994.

 

 

 

/s/ Linda Blanton-Myers

 

Linda Blanton-Myers

 

3


 EX-3.47(B) 95 a2202241zex-3_47b.htm EX-3.47(B)

Exhibit 3.47(b)

 

BYLAWS FOR THE REGULATION, EXCEPT AS

OTHERWISE PROVIDED BY STATUTE OR ITS

ARTICLES OF INCORPORATION, OF

CLUB GRAPHICS, INC.

 

ARTICLE I

 

OFFICES

 

Section 1.   Principal Office. The corporation will maintain offices for the transaction of business of the corporation at Club Graphics, Inc.

 

Section 2.   Other Offices. Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

ARTICLE II

 

MEETINGS OF SHAREHOLDERS

 

Section 1.   Place of Meetings. All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or (ii) consented to by the written consent of all shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

Section 2.   Annual Meetings. The annual meeting of shareholders shall be on the 3rd Monday of November in each year at 10:00 a.m.; provided, however, that should said day fall upon a legal holiday, then any such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such meetings, Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the power of the shareholders.

 

Section 3.   Special Meetings. Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the

 

Bylaws — A4431.2.33.34A

 

1


 

officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

Section 4.   Notice of Meeting. Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of shares, securities, or any other consideration (other than money) in the process of winding up.

 

Section 5.   Consent of Absentees. The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

Section 6.   Quorum. The presence in person or by proxy of persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

Section 7.   Voting. Unless a record date for voting purposes be fixed, as hereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the

 

Bylaws — A4431.2.33.34A

 

2


 

Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

Section 8.   Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

Section 9.   Adjourned Meetings and Notice Thereof. Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

Section 10.   Action Without Meeting. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting and filed with the Secretary of the corporation; provided, however, a meeting shall be held for dissolution, transfer of all or substantially all of the assets of the corporation, or for merger or consolidation of the corporation with other corporations, if same is required under applicable law.

 

ARTICLE III

 

DIRECTORS

 

Section 1.   Powers. Subject to limitations imposed by law or by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to

 

Bylaws — A4431.2.33.34A

 

3


 

the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

Section 2.   Number of Directors. The authorized number of Directors of the corporation shall be not less than one nor more than five until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

Section 3.   Election and Term of Office. The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

Section 4.   Vacancies. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of his term of office.

 

Section 5.   Quorum. A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly

 

Bylaws — A4431.2.33.34A

 

4


 

held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

Section 6.   Place of Directors’ Meetings. Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

Section 7.   Regular Meetings. Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

Section 8.   Special Meetings. Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each Director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or telegraphed shall be deposited in the United States mail or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting.

 

Section 9.   Notice of Adjourmnent. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

Section 10.   Waiver of Notice: Consent to Meeting. The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

Bylaws — A4431.2.33.34A

 

5


 

Section 11.      Adjournment. A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

Section 12.      Action Without Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

Section 13.      Fees and Compensation. Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

Section 14.      Indemnification of Directors, Officers and Employees.

 

A.      In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitable merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in

 

Bylaws — A4431.2.33.34A

 

6


 

the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

B.       Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a present or former Director, officer or employee of the corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

C.       The provisions of this Section shall apply to the estate, executor, administrator, heirs, legatees or devisees of any such present or former Director, officer or employee of the corporation.

 

D.       The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to indemnification hereunder, provided the premiums on such combined policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV

 

OFFICERS

 

Section 1.   Officers. The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

Section 2.   Other Officers. The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant

 

Bylaws — A4431.2.33.34A

 

7


 

Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

Section 3.   Removal and Resignation. Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4.   Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

Section 5.   Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

Section 6.   President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, at all meetings of the Board of Directors. He shall be an ex officio member of all the standing committees, including the Executive Committee, if any, and shall have the general powers and duties of management usually vested in the office of the President of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors.

 

Section 7.   Vice President. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and

 

Bylaws — A4431.2.33.34A

 

8


 

perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors.

 

Section 8.   Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of the corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 9.   Treasurer. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Bylaws — A4431.2.33.34A

 

9


 

ARTICLE V

 

MISCELLANEOUS

 

Section 1.   Record Date and Closing Stock Books. The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

Section 2.   Inspection of Corporate Records. The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

Every Director shall have the right at any reasonable time to inspect the books, records, documents of every kind, and the physical properties of the corporation and of its subsidiary corporations, domestic or foreign.

 

Section 3.   Certificates for Shares. A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit

 

Bylaws — A4431.2.33.34A

 

10


 

the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

Section 4.   Transfer of Stock. The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

Section 5.   Lost Certificates. New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

Section 6.   Corporate Seal. A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

Section 7.   Contracts — Execution of Documents. The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

Bylaws — A4431.2.33.34A

 

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All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

Section 8.   Representation of Shares of Other Corporations. The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 9.   Inspection of Bylaws. The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VI

 

AMENDMENTS

 

Section 1.   Power of Shareholders. New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

Section 2.   Power of Directors. Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

Bylaws — A4431.2.33.34A

 

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 EX-3.48(A) 96 a2202241zex-3_48a.htm EX-3.48(A)

Exhibit 3.48(a)

 

State of Delaware

Secretary of State

Division of Corporations

Delivered 05:50 PM 07/23/2010

FILED 05:22 PM 07/23/2010

SRV 100769731 - 4852025 FILE

 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP HAMLET, LLC

 

1.             The name of the limited liability company is: ClubCorp Hamlet, LLC

 

2.             The address of its registered office in the State of Delaware is: 2711 Centerville Road, Suite 400 in the City of Wilmington, Zip Code 19808. The name of its registered agent as such address is: Corporation Service Company.

 

                IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of ClubCorp Hamlet, LLC, this 23rd day of July, 2010.

 

 

 

Authorized Person,

 

 

 

 

 

/s/ Amber Imhoff

 

Amber Imhoff

 


 EX-3.48(B) 97 a2202241zex-3_48b.htm EX-3.48(B)

Exhibit 3.48(b)

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

CLUBCORP HAMLET, LLC

 

This Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Hamlet, LLC (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on July 23, 2010, Amber Imhoff caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.          Name.

 

The name of the limited liability company formed hereby is ClubCorp Hamlet, LLC.

 

Section 2.          Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.          Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 4.          Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.          Members.

 

(a)           The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

(b)           The Member may act by written consent.

 


 

Section 6.          Certificates.

 

Amber Imhoff was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by her in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, her powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.          Purposes.

 

The purpose to be conducted or promoted by the Company is to engage in any lawful business that may be engaged in by a limited liability company organized under the Act.

 

Section 8.          Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.          Management.

 

(a)           Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

Eric Resnick; and

Martin Newburger.

 

(b)           Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein,

 

2


 

including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)           Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)           Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)           Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)            Committees of Directors.

 

(i)                       The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                    In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                 Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board

 

3


 

in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)           Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)           Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)            Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.        Officers.

 

(a)           Officers. The initial Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

President;

Curt D. McClellan

Treasurer; and

Ingrid J. Keiser

Secretary.

 

(b)           President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the

 

4


 

Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)           Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)           Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)           Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)            Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

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(g)           Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.        Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 12.        Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.        Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.        Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.        Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 16.        Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The

 

6


 

Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.        Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.        Exculpation and Indemnification.

 

(a)           Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)           To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)           To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)           A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to

 

7


 

the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)           To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)            The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.        Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.        Resignation.

 

The Member may resign at any time.

 

Section 21.        Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

8


 

Section 22.        Dissolution.

 

(a)           The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)           Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)           In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)           The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.        Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the Member in the Company is personal property.

 

9

 

Section 24.        Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.        Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 26.        Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 27.        Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 28.        Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 29.        Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 30.        Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 31.        Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the

 

10


 

Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

 

MEMBER:

 

 

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

Name:

Ingrid J. Keiser

 

 

Title:

Secretary

 

Signature Page to the LLC Agreement — ClubCorp Hamlet, LLC

 


 

SCHEDULE A

 

Definitions

 

A.                      Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on July 23, 2010, as amended or amended and restated from time to time.

 

“Company” means ClubCorp Hamlet, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as a member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600

 

$100

 

100%

 

 

 

Dallas, TX   75234-7703

 

 

 

 

 

 

 

Attention:    Director of Finance and Chief Legal Officer

 

 

 

 

 

 

B-1


 EX-3.49(A) 98 a2202241zex-3_49a.htm EX-3.49(A)

Exhibit 3.49(a)

 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

 

JAN 27 1999
No. C 754–86

 

 

/S/ DEAN HELLER

 

 

DEAN HELLER, SECRETARY OF STATE

 

 

 

CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF

THE INTERNATIONAL GROUP OF CLUBCORP

 

We the undersigned as President and Secretary of THE INTERNATIONAL GROUP OF CLUBCORP do hereby certify:

 

That the Board of Directors of said corporation at a meeting duly convened and held on the 4th day of January, 1999, adopted a resolution to amend the original Articles of Incorporation, as follows:

 

Article I shall be amended to read as follows:

 

The name of this corporation is: “ClubCorp International, Inc.”.

 

The number of shares of the corporation outstanding and entitled to vote on such amendment to the Articles of Incorporation is 1,000; that the said change of name and amendment to the Articles of Incorporation has been consented to and approved by a majority vote of the stockholders holding at least a majority of stock outstanding and entitled to vote thereon at a special meeting of Shareholders duly convened and held on January 4, 1999.

 

Dated: January 4, 1999.

 

 

 

THE INTERNATIONAL GROUP OF CLUBCORP

 

 

 

 

 

 

 

 

 

 

By:

/s/ Robert H. Johnson

 

 

 

Robert H. Johnson, President

 

 

 

 

 

 

By:

/s/ Thomas T. Henslee

 

 

 

Thomas T. Henslee, Secretary

 

THE STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, the undersigned authority, a Notary Public in and for Dallas County, Texas on this 4th day of January, 1999, personally appeared Robert H. Johnson and Thomas T. Henslee who, after being by me duly sworn, declared that he was the person who signed the foregoing document as incorporator and that the statements contained therein are true.

 

[Illegible] SEAL OF OFFICE this 4th day of January, 1999.

 

 

 

/s/ [Illegible]

[Notary Public Seal]

Notary Public, State of Texas

 


 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

 

MAY 23 1995
No. 754–86

 

/s/ Dean Heller

 

DEAN HELLER, SECRETARY OF STATE

 

 

CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
CCA INTERNATIONAL, INC.

 

We, the undersigned as President and Secretary of CCA International, Inc., do hereby certify:

 

That the Board of Directors of said corporation by statement of unanimous consent dated April 27, 1995, adopted a resolution to amend the original articles as follows:

 

Article I is hereby amended to read as follows:

 

“The name of this corporation is: ClubCorp The International Group”.

 

The number of shares of the corporation outstanding and entitled to vote on an amendment to the Articles of Incorporation is 1,000; that the said change and amendment has been consented to and approved by a majority vote of the stockholders holding at least a majority of each class of stock outstanding and entitled to vote thereon.

 

Dated April 27, 1995

 

 

 

CCA INTERNATIONAL, INC.

 

 

 

 

 

 

 

 

 

 

By

/s/ Robert H. Johnson

 

 

 

Robert H. Johnson, President

 

 

 

 

 

 

By:

/s/ Terry A. Taylor

 

 

 

Terry A. Taylor, Secretary

 

STATE OF TEXAS

*

 

 

*

 

COUNTY OF DALLAS

*

 

 

Before me, a notary public, on this day personally appeared Robert H. Johnson, President of CCA INTERNATIONAL, INC., who acknowleded that he executed the above instrument.

 


/s/ Julie H. Green

[Notary Public Seal]

Notary Public in and for The State of Texas

 

RECEIVED

 

MAY 08 1995

 

Articles of Amendment — Nevada — A1328.23.29.999A

 

 

1


 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Terry A. Taylor, Secretary of CCA INTERNATIONAL, INC., who acknowleded that he executed the above instrument.

 


/s/ Julie H. Green

[Notary Public Seal]

Notary Public in and for The State of Texas

 

Articles of Amendment — Nevada — A1328.23.29.999A

 

 

2


 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

 

AUG 07 1995

 

No. 754–86

 

 

/s/ DEAN HELLER

 

RECEIVED

 

 

 

DEAN HELLER SECRETARY OF STATE

 

JUL 27 1995

 

CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
CLUBCORP THE INTERNATIONAL GROUP

 

We, the undersigned as President and Secretary of ClubCorp The International Group, do hereby certify:

 

That the Board of Directors of said corporation by statement of unanimous consent dated July 10, 1995, adopted a resolution to amend the original articles as follows:

 

Article I is hereby amended to read as follows:

 

“The name of this corporation is: The International Group of ClubCorp”.

 

The number of shares of the corporation outstanding and entitled to vote on an amendment to the Articles of Incorporation is 1,000; that the said change and amendment has been consented to and approved by a majority vote of the stockholders holding at least a majority of each class of stock outstanding and entitled to vote thereon.

 

Dated July 10, 1995

 

 

 

CLUBCORP THE INTERNATIONAL GROUP

 

 

 

 

 

 

 

 

 

 

By

/s/ Robert H. Johnson

 

 

 

Robert H. Johnson, President

 

 

 

 

 

 

By:

/s/ Terry A. Taylor

 

 

 

Terry A. Taylor, Secretary

 

 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Robert H. Johnson, President of CLUBCORP THE INTERNATIONAL GROUP, who acknowleded that he executed the above instrument.

 

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public in and for The State of Texas

 

Articles of Amendment — Nevada — A1328.24.29.999B

 

 

1


 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Terry A. Taylor, Secretary of CLUBCORP THE INTERNATIONAL GROUP, who acknowleded that he executed the above instrument.

 

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public in and for The State of Texas

 

Articles of Amendment — Nevada — A1328.24.29.999B

 

 

2


 

FILED

 

FILING FEE: $75.00

IN THE OFFICE OF THE

 

BY:

PAGE & ADDISION, P.C.

SECRETARY OF STATE OF THE

 

 

14651 DALLAS PARKWAY

STATE OF NEVADA

 

 

SUITE 700

 

 

 

DALLAS, TEXAS 75240

FEB 3 1996

 

 

[Illegible]

 

 

 

 

 

[Illegible]

 

 

No 754–86

 

 

 

ARTICLES OF INCORPORATION

 

OF

 

CCA INTERNATIONAL, INC.

 

KNOW ALL MEN BY THESE PRESENTS:

 

That we, the undersigned, have this day voluntarily associated ourselves together for the purpose of forming corporation under and pursuant to the laws of the State of Nevada, and we do hereby certify that:

 

I.

 

The name of this corporation is CCA INTERNATIONAL, INC.

 

II.

 

The principal office and place of business in Nevada of this corporation shall be located at One East First Street, Reno, Nevada 89501, in the County of Washoe.

 

Offices for the transaction of any business of the corporation, and where meetings of the Board of Directors and of the stockholders may be held, may be established and maintained in any other part of the State of Nevada, or in any other state, territory, or possession of the United States of America, or in any foreign country.

 

III.

 

The nature of the business and objects and purposes proposed to be transacted, promoted or carried on by the corporation are to engage in any lawful activity.

 

IV.

 

The total authorized capital stock of the corporation shall consist of one thousand (1,000) shares, with a par value of $1.00 per share, all of which shall be untitled to voting power.

 

V.

 

The members of the governing board of the corporation shall be styled Directors, and the number thereof at the inception of this corporation shall be three (3) or more. The number of Directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of the corporation and the statutes of the State of Nevada. Directors need not be shareholders, but shall be full age and at least one

 


 

shall be a citizen of the United States. The names and post office addresses of the first Board of Directors, which shall consist of three (3) persons, and who shall hold office until their successors are duly elected and qualified are as follows:

 

Names

 

Addresses

 

 

 

Murry E. Page

 

14651 Dallas Parkway, Suite 700

 

 

Dallas, Texas 75240

 

 

 

Randolph D. Addison

 

14651 Dallas Parkway, Suite 700

 

 

Dallas, Texas 75240

 

 

 

John M. Theirl

 

14651 Dallas Parkway, Suite 700

 

 

Dallas, Texas 75240

 

VI.

 

The capital stock of the corporation, after the amount of the subscription price has been paid in money, property, or services, as the Directors shall determine, shall not be subject to assessment to pay the debts of the corporation, nor for any other purpose, and no stock issued as fully paid up shall ever be assessable or assessed, and the Articles of Incorporation shall not be amended in this particular.

 

VII.

 

This corporation shall have perpetual existence.

 

VIII.

 

The name and address of the incorporator signing these Articles of Incorporation is as follows:

 

Names

 

Addresses

 

 

 

Richard T. Cassidy

 

14651 Dallas Parkway, Suite 700
Dallas, Texas 75240

 

IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of Incorporation this 31st day of January, 1986.

 


/s/ Richard T. Cassidy

 

Richard T. Cassidy

 


 

THE STATE OF TEXAS

()

 

()

COUNTY OF DALLAS

()

 

On this 31st day of January, 1986, personally appeared before me, a Notary Public in and for said County and State, Richard T. Cassidy, who acknowledged to me that he is the individual who executed the foregoing document and that he did so freely and voluntarily and for the uses and purposes therein mentioned.

 

 

 

/s/ Lynn Zimmermann

[Notary Public Seal]

Notary Public, State of Texas

 

 


 EX-3.49(B) 99 a2202241zex-3_49b.htm EX-3.49(B)

Exhibit 3.49(b)

 

BY-LAWS

 

OF

 

CLUBCORP INTERNATIONAL, INC.

 

ARTICLE I

 

Stockholders

 

Section 1.1.                   Annual Meetings. An annual meeting of stockholders shall be held for the election of directors at such date, time and place either within or without the State of Delaware as may be designated by the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.                   Special Meetings. Special meetings of stockholders may be called at any time by the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President or the Board of Directors, to be held at such date, time and place either within or without the State of Delaware as may be stated in the notice of the meeting.

 

Section 1.3.                   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the written notice of any meeting shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.

 

Section 1.4.                   Action Without a Meeting. Whenever stockholders are required or permitted to take action at a meeting; such action may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action, so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

 


 

Section 1.5.                   Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.6.                   Quorum. At each meeting of stockholders, except where otherwise provided by law or the certificate of incorporation or these by-laws, the holders of a majority of the outstanding shares of stock entitled to vote on a matter at the meeting, present in person or represented by proxy, shall constitute a quorum. For purposes of the foregoing, where a separate vote by class or classes is required for any matter, the holders of a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. Two or more classes or series of stock shall be considered a single class if the holders thereof are entitled to vote together as a single class at the meeting. In the absence of a quorum of the holders of any class of stock entitled to vote on a matter, the holders of such class so present or represented may, by majority vote, adjourn the meeting of such class from time to time in the manner provided by Section 1.4 of these by-laws until a quorum of such class shall be so present or represented. Shares of its own capital stock belonging on the record date for the meeting to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.7.                   Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the President, or in the absence of the President by a Vice President, or in the absence of the foregoing persons by a chairman

 

2


 

designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairman of the meeting may appoint any person to act as secretary of the meeting.

 

The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof and the opening and closing of the voting polls.

 

Section 1.8.                   Inspectors. Prior to any meeting of stockholders, the Board of Directors or the President shall appoint one or more inspectors to act at such meeting and make a written report thereof and may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at the meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain the number of shares outstanding and the voting power of each, determine the shares represented at the meeting and the validity of proxies and ballots, count all votes and ballots, determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons to assist them in the performance of their duties. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting. No ballot, proxy or vote, nor any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls. In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted therewith, any

 

3


 

information provided by a stockholder who submits a proxy by telegram, cablegram or other electronic transmission from which it can be determined that the proxy was authorized by the stockholder, ballots and the regular books and records of the corporation, and they may also consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for such purpose, they shall, at the time they make their certification, specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.

 

Section 1.9.                   Voting; Proxies. Unless otherwise provided in the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. If the certificate of incorporation provides for more or less than one vote for any share on any matter, every reference in these by-laws to a majority or other proportion of stock shall refer to such majority or other proportion of the votes of such stock. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot and need not be conducted by inspectors unless the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or represented by proxy at such meeting shall so determine. Directors shall be elected by a plurality of the votes of the shares present in person

 

4


 

or represented by proxy at the meeting and entitled to vote on the election of directors. In all other matters, unless otherwise provided by law or by the certificate of incorporation or these by-laws, the affirmative vote of the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. Where a separate vote by class or classes is required, the affirmative vote of the holders of a majority of the shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class or classes, except as otherwise provided by law or by the certificate of incorporation or these by-laws.

 

Section 1.10.             Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal

 

5


 

place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

Section 1.11.             List of Stockholders Entitled to Vote. The Secretary shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present.

 

Section 1.12.             Advance Notice of Stockholder Proposals. At any annual or special meeting of stockholders, proposals by stockholders and persons nominated for election as directors by stockholders shall be considered only if advance notice thereof has been timely given as provided herein and such proposals or nominations

 

6


 

are otherwise proper for consideration under applicable law and the certificate of incorporation and by-laws of the Corporation. Notice of any proposal to be presented by any stockholder or of the name of any person to be nominated by any stockholder for election as a director of the Corporation at any meeting of stockholders shall be delivered to the Secretary of the Corporation at its principal executive office not less than 60 nor more than 90 days prior to the date of the meeting; provided, however, that if the date of the meeting is first publicly announced or disclosed (in a public filing or otherwise) less than 70 days prior to the date of the meeting, such advance notice shall be given not more than ten days after such date is first so announced or disclosed. Public notice shall be deemed to have been given more than 70 days in advance of the annual meeting if the Corporation shall have previously disclosed, in these by-laws or otherwise, that the annual meeting in each year is to be held on a determinable date, unless and until the Board determines to hold the meeting on a different date. Any stockholder who gives notice of any such proposal shall deliver therewith the text of the proposal to be presented and a brief written statement of the reasons why such stockholder favors the proposal and setting forth such stockholder’s name and address, the number and class of all shares of each class of stock of the Corporation beneficially owned by such stockholder and any material interest of such stockholder in the proposal (other than as a stockholder). Any stockholder desiring to nominate any person for election as a director of the Corporation shall deliver with such notice a statement in writing setting forth the name of the person to be nominated, the number and class of all shares of each class of stock of the Corporation beneficially owned by such person, the information regarding such person required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by the Securities and Exchange Commission (or the corresponding provisions of any regulation subsequently adopted by the Securities and Exchange Commission applicable to the Corporation), such person’s signed consent to serve as a director of the Corporation if elected, such stockholder’s name and address and the number and class of all shares of each class of stock of the Corporation beneficially owned by such stockholder. As used herein, shares “beneficially owned” shall mean all shares as to which such person, together with such person’s affiliates and associates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934), may be deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as well as all shares as to which such person, together with such person’s affiliates and associates, has the right to become the beneficial owner

 

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pursuant to any agreement or understanding, or upon the exercise of warrants, options or rights to convert or exchange (whether such rights are exercisable immediately or only after the passage of time or the occurrence of conditions). The person presiding at the meeting, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall determine whether such notice has been duly given and shall direct that proposals and nominees not be considered if such notice has not been given.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.                   Powers; Number; Qualifications. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by law or in the certificate of incorporation. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by the Board. Directors need not be stockholders.

 

Section 2.2.                   Election; Term of Office; Resignation; Removal; Vacancies. Each director shall hold office until the next election of the class for which such director shall have been chosen, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any director may resign at any time upon written notice to the Board of Directors or to the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series of stock are entitled to elect one or more directors by the certificate of incorporation, the provisions of the preceding sentence shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Unless otherwise provided in the certificate of incorporation or these by-laws, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class or from any other cause may

 

8


 

be filled by a majority of the directors then in office, although less than a quorum, or by the sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by the sole remaining director so elected. Any director elected or appointed to fill a vacancy shall hold office until the next election of the class of directors of the director which such director replaced, and until and his or her successor is elected and qualified or until his or her earlier resignation or removal.

 

Section 2.3.                   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board may from time to time determine, and if so determined notice thereof need not be given.

 

Section 2.4.                   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairman of the Board, if any, by the Vice Chairman of the Board, if any, by the President or by any two directors. Reasonable notice thereof shall be given by the person or persons calling the meeting.

 

Section 2.5.                   Participation in Meetings by Conference Telephone Permitted. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of the Board or of such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.                   Quorum; Vote Required for Action. At all meetings of the Board of Directors one-third of the entire Board shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board unless the certificate of incorporation or these by-laws shall require a vote of a greater number. In case at any meeting of the Board a quorum shall not be present, the members of the Board present may adjourn the meeting from time to time until a quorum shall be present.

 

9

 

 

Section 2.7.              Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the President, or in their absence by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairman of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.              Action by Directors Without a Meeting. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

 

Section 2.9.              Compensation of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, the Board of Directors shall have the authority to fix the compensation of directors.

 

ARTICLE III

 

Committees

 

Section 3.1.              Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors or in these by-laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in

 

10


 

reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by law to be submitted to stockholders for approval, (ii) adopting, amending or repealing these By-Laws or (iii) removing or indemnifying directors.

 

Section 3.2.              Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board may adopt, amend and repeal rules for the conduct of its business. In the absence of a provision by the Board or a provision in the rules of such committee to the contrary, a majority of the entire authorized number of members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the members present at a meeting at the time of such vote if a quorum is then present shall be the act of such committee, and in other respects each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.              Officers; Election. As soon as practicable after the annual meeting of stockholders in each year, the Board of Directors shall elect a President and a Secretary, and it may, if it so determines, elect from among its members a Chairman of the Board and a Vice Chairman of the Board. The Board may also elect one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as the Board may deem desirable or appropriate and may give any of them such further designations or alternate titles as it considers desirable. Any number of offices may be held by the same person unless the certificate of incorporation or these by-laws otherwise provide.

 

Section 4.2.              Term of Office; Resignation; Removal; Vacancies. Unless otherwise provided in the resolution of the Board of Directors electing any officer, each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the Board or to the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be

 

11


 

necessary to make it effective. The Board may remove any officer with or without cause at any time. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election of an officer shall not of itself create contractual rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board at any regular or special meeting.

 

Section 4.3.              Powers and Duties. The officers of the Corporation shall have such powers and duties in the management of the Corporation as shall be stated in these by-laws or in a resolution of the Board of Directors which is not inconsistent with these by-laws and, to the extent not so stated, as generally pertain to their respective offices, subject to the control of the Board. The Secretary shall have the duty to record the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book to be kept for that purpose. The Board may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

ARTICLE V

 

Stock

 

Section 5.1.              Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, representing the number of shares of stock in the Corporation owned by such holder. If such certificate is manually signed by one officer or manually countersigned by a transfer agent or by a registrar, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

 

If the Corporation is authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications or

 

12


 

restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided by law, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

Section 5.2.              Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Miscellaneous

 

Section 6.1.              Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.

 

Section 6.2.              Seal. The Corporation may have a corporate seal which shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

 

Section 6.3.              Waiver of Notice of Meetings of Stockholders, Directors and Committees. Whenever notice is required to be given by law or under any provision of the certificate of incorporation or these by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting,

 

13


 

except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or these by-laws.

 

Section 6.4.              Indemnification of Directors, Officers and Employees. The Corporation shall indemnify to the full extent permitted by law any person made or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person or such person’s testator or intestate is or was a director, officer or employee of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer or employee. Expenses, including attorneys’ fees, incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking of such person to repay such expenses if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer or employee as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term “Corporation” shall include any predecessor of the Corporation and any constituent corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term “other enterprise” shall include any corporation, partnership, joint venture, trust or employee benefit plan; service “at the request of the Corporation” shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by, such director, officer or employee with respect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to an employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation.

 

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Section 6.5.              Interested Directors; Quorum. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or her or their votes are counted for such purpose, if: (1) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

 

Section 6.6.              Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other information storage device, provided that the records so kept can be converted into clearly legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.

 

Section 6.7.              Amendment of By-Laws. These by-laws may be amended or repealed, and new by-laws adopted, by the Board of Directors, but the stockholders entitled to vote may adopt additional by-laws and may amend or repeal any by-law whether or not adopted by them.

 

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 EX-3.50(A) 100 a2202241zex-3_50a.htm EX-3.50(A)

Exhibit 3.50(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP IW GOLF CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp IW Golf Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp IW Golf Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Indian Wells Country Club, in the City of Indian Wells, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

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 EX-3.50(B) 101 a2202241zex-3_50b.htm EX-3.50(B)

Exhibit 3.50(b)

 

BY-LAWS

 

OF

 

CLUBCORP IW GOLF CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.51(A) 102 a2202241zex-3_51a.htm EX-3.51(A)

Exhibit 3.51(a)

 

State of Delaware

 

 

Secretary of State

 

 

Division of Corporations

 

 

Delivered 07:21 PM 07/03/2007

 

 

FILED 06:40 PM 07/03/2007

 

 

SRV 070781285 - 4383327 FILE

 

 

 

STATE of DELAWARE

LIMITED LIABILITY COMPANY

CERTIFICATE of FORMATION

 

·                  First: The name of the limited liability company is ClubCorp Management Company for Stone Creek, LLC

 

·                  Second: The address of its registered office in the State of Delaware is 2711 Centerville Road Suite 400 in the City of Wilmington, DE 19808. The name of its Registered agent at such address is Corporation Service Company

 

·                  Third: (Use this paragraph only if the company is to have a specific effective date of dissolution: “The latest date on which the limited liability company is to dissolve is                     .”)

 

·                  Fourth: (Insert any other matters the members determine to include herein.)

 

 

In Witness Whereof, the undersigned have executed this Certificate of Formation this 2nd day of July, 2007.

 

 

 

By:

 

/s/ Rand Huguely

 

 

 

Authorized Person(s)

 

 

 

 

 

Name:

 

Rand Huguely

 

 

 

Typed or Printed

 


 EX-3.51(B) 103 a2202241zex-3_51b.htm EX-3.51(B)

Exhibit 3.51(b)

 

FIRST AMENDMENT

TO

AMENDED AND RESTATED LIMITED LIABILITY

COMPANY AGREEMENT

OF

CLUBCORP MANAGEMENT COMPANY FOR STONE CREEK, LLC

 

This First Amendment to Limited Liability Company Agreement (this “Amendment”) of ClubCorp Management Company for Stone Creek, LLC a limited liability company organized under the laws of the state of Delaware is entered into this 10th day of November, 2010 by and between ClubCorp USA, Inc., as the sole equity member (the “Member”). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Operating Agreement (defined below).

 

RECITALS

 

A.       The Member entered into an Amended and Restated Limited Liability Company Agreement dated as of July 1, 2008 (the “Operating Agreement”).

 

B.        The Member desires to further amend the Operating Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

 

1.        Section 7(ii) of the Operating Agreement is amended to read as follows:

 

(ii) to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware; and

 

2.        Section 19 of the Operating Agreement is amended to read as follows:

 

Section 19.      Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member

 


 

may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

3.        Except as modified herein, the Operating Agreement shall continue in full force and effect.

 

4.        This Amendment shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), and all rights and remedies being governed by said laws.

 

[The remainder of this page is intentionally blank.]

 

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IN WITNESS WHEREOF, the undersigned have executed this Amendment.

 

 

 

MEMBER:

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

Name:

Ingrid Keiser

 

Title:

Secretary

 

Signature Page to the First Amendment to A&R LLC Agreement — ClubCorp Management Company for Stone Creek LLC

 


 

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

CLUBCORP MANAGEMENT COMPANY FOR STONE CREEK, LLC

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”)  of ClubCorp Management Company for Stone Creek, LLC (the “Company”),  is entered into by ClubCorp USA, Inc., a Delaware corporation as the sole member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A  hereto.

 

WHEREAS, on July 3, 2007, the Certificate of Formation of the Company (the “Certificate of Formation”)  was filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. Code § 18-101 et seq.),  as amended from time to time (the “Act”);

 

WHEREAS, on the Member, acting as the sole member of the Company, entered into a Limited Liability Company Agreement for the Company as of July 3, 2007 (the “Original Agreement”);  and

 

WHEREAS, the Member desires to amend and restate the Original Agreement in its entirety as set forth herein.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.      Name.

 

The name of the limited liability company formed hereby is ClubCorp Management Company for Stone Creek, LLC.

 

Section 2.      Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.      Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.      Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.      Member.

 

The mailing address of the Member is ClubCorp USA, Inc., c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, Attention: General Counsel. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

Section 6.      Certificates.

 

The Member or an Officer shall execute, deliver and file any amendments and/or restatements of the Certificate of Formation and any other certificates or instruments necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.      Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(i)        to operate and manage Stone Creek Golf Club, in the City of Ocala, State of Florida (the “Property”);

 

(ii)       to engage in such lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware that are incidental to or connected with the foregoing business or purposes or necessary to accomplish the foregoing; and

 

(iii)      to engage in any other lawful business that may be engaged in by a limited liability company organized under the Act, as such business activities may be determined by the Board of Directors from time to time.

 

Section 8.      Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.      Management.

 

(a)       Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to

 

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constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The initial Directors designated by the Member shall be as follows:

 

Eric L. Affeldt

David Woodyard

Ingrid Keiser

 

(b)      Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)       Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)      Quorum; Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)       Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)       Committees of Directors.

 

(i)        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or

 

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more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)       In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)      Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)      Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)      Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)        Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.    Officers.

 

(a)       Officers. The initial Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. The Board may also choose one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers and agents as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as may be determined from time to time by the Board. The salaries of all Officers and agents of the Company shall be fixed by or in the manner prescribed by the Board. The

 

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Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company shall be filled by the Board. The initial Officers of the Company designated by the Member shall be as follows:

 

President

Eric L. Affeldt

Vice President

David Woodyard

Secretary

Ingrid Keiser

Treasurer

Daniel Tilley

 

(b)      President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts.

 

(c)       Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there is more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions on the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)      Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)       Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the

 

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absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)       Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business, and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)      Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.    Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 12.    Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B hereto.

 

Section 13.    Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Member shall revise Schedule B. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit on any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.    Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.    Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Member on account

 

6


 

of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 16.    Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.    Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.    Exculpation and Indemnification.

 

(a)       Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”)  shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)      To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however,  that any indemnity under this Section 18  by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)       To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall,

 

7

 

from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)                   A Covered Person shall be fully protected in relying in good faith on the records of the Company and on such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                    To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                      The foregoing provisions of this Section 18  shall survive any termination of this Agreement.

 

Section 19.           Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. Subject to Section 21, if the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement, and the Company shall continue without dissolution.

 

Section 20.           Resignation.

 

The Member may resign at any time.

 

Section 21.           Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

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Section 22.           Dissolution.

 

(a)                    The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company, to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company in the Company.

 

(b)                   Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                    Notwithstanding any other provision of this Agreement, the Member waives any right it might have to agree in writing to dissolve the Company upon the Bankruptcy of the Member, or the occurrence of an event that causes the Member to cease to be a member of the Company.

 

(d)                   In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(e)                    The Company shall terminate when (i) all the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.           Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 24.           Severability of Provisions.

 

Each provision of this Agreement shall be considered severable, and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any

 

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existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement that are valid, enforceable and legal.

 

Section 25.           Entire Agreement.

 

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

 

Section 26.           Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 27.           Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 28.           Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 29.           Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Amended and Restated Limited Liability Company Agreement for ClubCorp Management Company for Stone Creek, LLC as of the 1st day of July, 2008.

 

 

MEMBER:

 

 

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Eric Affeldt

 

 

Name:

Eric Affeldt

 

 

Title:

President

 

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SCHEDULE A

 

Definitions

 

A.                      Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on July 3, 2007, as amended or amended and restated from time to time.

 

“Company” has the meaning set forth in the preamble to this Agreement.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

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of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member, in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the act.

 

“Member” means ClubCorp USA, Inc., as the initial member of the Company, and includes any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 10.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

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SCHEDULE B

 

Member

 

 

 

 

 

Agreed Value of

 

Membership

 

Name

 

Mailing Address

 

Capital Contribution

 

Interest

 

 

 

 

 

 

 

 

 

ClubCorp USA, Inc.

 

c/o ClubCorp, Inc.,
3030 LBJ Freeway, Suite 600,
Dallas, Texas 75234-7703,
Attention: General Counsel

 

$

1,000

 

100

%

 

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 EX-3.52(A) 104 a2202241zex-3_52a.htm EX-3.52(A)

Exhibit 3.52(a)

 

CERTIFICATE OF

 

THIRD AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

CLUBCORP MEXICO, INC.

 

The undersigned officer of ClubCorp Mexico, Inc., a Nevada corporation, for the purposes of amending and restating, pursuant to Nevada Revised Statutes 78.390 and 78.403, the Articles of Incorporation originally filed with the Nevada Secretary of State on November 20, 1995, hereby executes these Third Amended and Restated Articles of Incorporation and certifies that such Third Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010, and were adopted by the sole stockholder of the Corporation on November 9, 2010, as follows:

 

1.                          Name of Corporation:  The name of the corporation is ClubCorp Mexico, Inc. (the “Corporation”).

 

2.                          Authorized Capital Stock:  The total authorized capital stock of the Corporation shall consist of one thousand (1,000) shares of common stock having a par value of one dollar ($1.00) per share.

 

3.                          Purpose:  The purpose of the Corporation shall be to engage in any lawful activity, including, without limitation, the following:

 

(a)                    to own ownership interests and act as general partner in each of CG Inversiones S.A. de C.V. and Promociones Turistas Profesionales, S.A. de C.V. (such interests are collectively referred to herein as the “Property”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property; and

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations.

 

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4.                          Management of the Corporation:  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors. The Board of Directors shall be elected in such manner as shall be provided in the Bylaws of the Corporation (as amended from time to time, the “Bylaws”). The number of directors may be changed from time to time in such manner as shall be provided in the Bylaws, provided that the number of directors shall not be less than one (1).

 

5.                          Additional Provisions:

 

(a)                    The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

(b)                   The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

*                                         *                                         *

 

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IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed this Certificate of Third Amended and Restated Articles of Incorporation on this 10th day of November, 2010.

 

 

 

 

CLUBCORP MEXICO, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

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 EX-3.52(B) 105 a2202241zex-3_52b.htm EX-3.52(B)

Exhibit 3.52(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

CLUBCORP MEXICO, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Nevada, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting, signed in accordance with applicable law, shall be given that shall state the place, if any, date and hour of the meeting, the means of electronic communications, if any, by which stockholders and proxies shall be deemed to be present in person and vote, and the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation, as amended, or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but, except as otherwise provided in this section 1.7, no such proxy shall be voted or acted upon after six months from its creation, unless the proxy provides for a longer period which may not exceed seven years from its creation. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, such as the appointment as proxy of a pledgee, a person who purchased or agreed to purchase the shares, a creditor of the corporation who extended it credit under terms requiring the appointment, an employee of the corporation whose employment contract requires the appointment or a party to a voting agreement created pursuant to subsection 3 of Nevada Revised Statutes 78.365. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the

 

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rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the Board of Directors may fix a new record date for the adjourned meeting. The Board of Directors must fix a new record date if the meeting is adjourned to a date more than 60 days later than the date set for the original meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that

 

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the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Nevada, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. To the extent permitted by applicable law, the corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of

 

4


 

proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, to the extent permitted by applicable law, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Nevada and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Nevada whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice

 

6


 

Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Unless the Board of Director appoints alternate members, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. All officers must be natural persons. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, to the extent permitted by applicable law, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may, to the extent

 

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permitted by applicable law, file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.53(A) 106 a2202241zex-3_53a.htm EX-3.53(A)

Exhibit 3.53(a)

 

State of Delaware

Certificate of Correction

of a Limited Liability Company

to be filed pursuant to Section 18-211(a)

 

1.               The name of the Limited Liability Company is: ClubCorp Mezzanine Borrower LLC.

 

2.               That a Certificate of Formation was filed by the Secretary of State of Delaware on November 3, 2006, and that said Certificate requires correction as permitted by Section 18-211 of the Limited Liability Company Act.

 

3.               The inaccuracy or defect of said Certificate is: (must give specific reason)

Failure to include a comma after the word “Borrower” in entity’s name.

 

4.               The Certificate is hereby corrected to read as follows:

First: The name of the limited liability company formed hereby is ClubCorp Mezzanine Borrower, LLC.

 

 

IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 6th day of November, A.D. 2006.

 

 

By:

/s/ Kurt J. Neumann

 

 

Authorized Person

 

 

Name:

Kurt J. Neumann

 

 

Print or Type

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 07:24 PM 11/06/2006

FILED 07:10 PM 11/06/2006
SRV 061018824 — 4246123 FILE

 

 

 


 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP MEZZANINE BORROWER LLC

 

This Certificate of Formation of ClubCorp Mezzanine Borrower LLC (the “LLC”), dated as of November 3,2006, is being duly executed and filed by Kurt J. Neumann, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.).

 

FIRST. The name of the limited liability company formed hereby is ClubCorp Mezzanine Borrower LLC.

 

SECOND. The address of the registered office of the LLC in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

THIRD. The name and address of the registered agent for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of  Formation as of the date first above written.

 

 

/s/ Kurt J. Neumann

 

Name: Kurt J. Neumann

 

Authorized Person

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 06:05 PM 11/03/2006

FILED 05:43 PM 11/03/2006
SRV 061013929 — 4246123 FILE

 


 EX-3.53(B) 107 a2202241zex-3_53b.htm EX-3.53(B)

Exhibit 3.53(b)

 

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

CLUBCORP MEZZANINE BORROWER, LLC

 

This Second Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Mezzanine Borrower, LLC (the “Company”), is entered into by ClubCorp USA, Inc., as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on November 3, 2006, Kurt J. Neumann executed and filed a Certificate of Formation with the Secretary of State of the State of Delaware, and on November 6, 2006, executed and filed the Certificate of Correction thereto (as so corrected, the “Certificate of Formation”) in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Limited Liability Company Agreement of ClubCorp Mezzanine Borrower, LLC, dated as of December 26, 2006 entered into by ClubCorp USA, Inc. as the sole member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, on December 26. 2006, CCA USA Transitory, LLC, the sole member of the Company under the Limited Liability Company Agreement of ClubCorp Mezzanine Borrower, LLC, dated as of December 26, 2006 entered into by CCA USA Transitory, LLC, merged with and into the Member, with the Member as the sole successor entity to CCA USA Transitory, LLC following the merger.

 

WHEREAS, the Member now desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.                    Name.

 

The name of the limited liability company continued hereby is ClubCorp Mezzanine Borrower, LLC.

 

Section 2.                    Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance, or such other location as may hereafter be determined by the Member.

 

 


 

Section 3.                    Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 4.                    Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.                    Members.

 

(a)                       The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)                      The Member may act by written consent.

 

Section 6.                    Certificates.

 

Kurt J. Neumann was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company and the Certificate of Correction thereto with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Correction to the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.                    Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                       to own interests in and act as a member of (A) ClubCorp Mortgage Borrower, LLC and (B) CCA Mezzanine Holdco, LLC (such interests are collectively referred to herein as the “Property”);

 

(b)                      to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Property including, without limitation, the grant of a security interest in such Property;

 

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(c)                       to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)                      to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                       to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.                    Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.                    Management.

 

(a)                       Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)                      Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                       Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)                      Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present

 

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at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                       Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                         Committees of Directors.

 

(i)                        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                     In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                  Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)                      Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)                      Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the

 

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Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                          Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.              Reserved.

 

Section 11.              Officers.

 

(a)                       Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)                      President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                       Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)                      Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing

 

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committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                       Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                         Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)                      Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.              Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.              Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

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Section 14.              Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.              Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.              Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17.              Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.              Reserved.

 

Section 19.              Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

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Section 20.              Exculpation and Indemnification.

 

(a)                       Neither the Member any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)                      To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                       To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)                      A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                       To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

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(f)                         The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.              Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.              Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.              Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.              Dissolution.

 

(a)                       The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the

 

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Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)                      Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                       In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)                      The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.              Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.              Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

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Section 27. Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 28. Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29. Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30. Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31. Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32. Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33. Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34. Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by,

 

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(i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in ClubCorp Mezzanine Borrower, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

Section 35. Tax Status.

 

The Company is intended to be a disregarded entity for United States federal tax purposes.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name: Ingrid Keiser

 

 

Title: Secretary

 

Signature Page to the Second A&R LLC Agreement — ClubCorp Mazzanine Borrower LLC

 


 

SCHEDULE A

 

Definitions

 

A.                      Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Second Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on November 3, 2006, as corrected by the Certificate of Correction thereto, as filed with the Secretary of State of the State of Delaware on November 6, 2006, and as amended or amended and restated from time to time.

 

“Company” means ClubCorp Mezzanine Borrower, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise.

 

A-1


 

“Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

 

 

 

 

Agreed Value of

 

 

 

Name

 

Mailing Address

 

Capital
Contribution

 

Membership
Interest

 

ClubCorp USA,
Inc.

 

c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$

100

 

100

%

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.                          Eric L.Affeldt

 

2.                          Eric C. Resnick

 

3.                          Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CLUBCORP MEZZANINE BORROWER, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number:

% of Interests

 

ClubCorp Mezzanine Borrower, LLC, a Delaware limited liability company (the “Company”), hereby certifies that                                                            (the “Holder”) is the registered owner of                   % of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER           , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in ClubCorp Mezzanine Borrower, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by                                                as of the date set forth below.

 

Dated:

 

 

 

 

E-1


 

(REVERSE SIDE OF CERTIFICATE

FOR INTERESTS OF CLUBCORP MEZZANINE BORROWER, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                            (print or typewrite name of Transferee),                  (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                            (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                     , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

(Transferor)

 

 

Address:

 

 

 

 

 

 

 

 

E-2


 EX-3.54(A) 108 a2202241zex-3_54a.htm EX-3.54(A)

Exhibit 3.54(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP MISSION HILLS COUNTRY CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Mission Hills Country Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Mission Hills Country Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed solely for the following limited purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Mission Hills Country Club, in the City of Rancho Mirage, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

2


 

whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

3


 

IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.54(B) 109 a2202241zex-3_54b.htm EX-3.54(B)

Exhibit 3.54(b)

 

BY-LAWS

 

OF

 

CLUBCORP MISSION HILLS COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

2


 

Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

3


 

Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.55(A) 110 a2202241zex-3_55a.htm EX-3.55(A)

Exhibit 3.55(a)

 

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 07:24 PM 11/06/2006

 

FILED 07:08 PM 11/06/2006

 

SRV 061018817 - 4246125 FILE

 

State of Delaware

Certificate of Correction

of a Limited Liability Company

to be filed pursuant to Section 18-211(a)

 

1.                          The name of the Limited Liability Company is:

ClubCorp Mortgage Borrower LLC.

 

2.                          That a Certificate of Formation was filed by the Secretary of State of Delaware on November 3, 2006, and that said Certificate requires correction as permitted by Section 18-211 of the Limited Liability Company Act.

 

3.                          The inaccuracy or defect of said Certificate is: (must give specific reason)
Failure to include a comma after the word “Borrower” in entity’s name.

 

 

4.                          The Certificate is hereby corrected to read as follows:

First: The name of the limited liability company formed hereby is ClubCorp Mortgage Borrower, LLC.

 

 

IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 6th day of November, A.D. 2006.

 

 

By:

 

/s/ Kurt J. Neumann

 

Authorized Person

 

 

Name:

 

Kurt J. Neumann

 

Print or Type

 


 

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 06:05 PM 11/03/2006

 

FILED 05:45 PM 11/03/2006

 

SRV 061013937 - 4246125 FILE

 

CERTIFICATE OF FORMATION

OF

CLUBCORP MORTGAGE BORROWER LLC

 

This Certificate of Formation of ClubCorp Mortgage Borrower LLC (the “LLC”), dated as of November 3, 2006, is being duly executed and filed by Kurt J. Neumann, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.).

 

FIRST. The name of the limited liability company formed hereby is ClubCorp Mortgage Borrower LLC.

 

SECOND. The address of the registered office of the LLC in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

THIRD. The name and address of the registered agent for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first above written.

 

 

/s/ Kurt J. Neumann

 

Name: Kurt J. Neumann

 

Authorized Person

 


 EX-3.55(B) 111 a2202241zex-3_55b.htm EX-3.55(B)

Exhibit 3.55(b)

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

CLUBCORP MORTGAGE BORROWER, LLC

 

This Amended and Restated Limited Liability Company Agreement (together with schedules attached hereto, this “Agreement”) of ClubCorp Mortgage Borrower, LLC (the “Company”), is entered into by ClubCorp Mezzanine Borrower, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

On November 3, 2006, Kurt J. Neumann executed and filed a Certificate of Formation with the Secretary of State of the State of Delaware, and on November 6, 2006, executed and filed the Certificate of Correction thereto (as so corrected, the “Certificate of Formation”) in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Agreement of ClubCorp Mortgage Borrower, LLC, dated as of December 26, 2006 entered into by ClubCorp Mezzanine Borrower, LLC as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1                Name.

 

The name of the limited liability company continued hereby is ClubCorp Mortgage Borrower, LLC.

 

Section 2.               Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance, or such other location as may hereafter be determined by the Member.

 

Section 3.               Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.               Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.               Members.

 

(a)                The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)               The Member may act by written consent.

 

Section 6.               Certificates.

 

Kurt J. Neumann was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company and the Certificate of Correction thereto with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Correction to the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.               Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                to own interests in and act as a member of: (A) CCA Golf Course Holdco, LLC and (B) CCA Resort Holdco, LLC (such interests are collectively referred to herein as the “Property”);

 

(b)               to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

2


 

(d)               to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.               Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.               Management.

 

(a)                Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)               Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)               Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the

 

3


 

meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                Committees of Directors.

 

(i)                        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                     In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                  Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)               Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)               Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the

 

4


 

Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                 Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.             Reserved.

 

Section 11.             Officers.

 

(a)                Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)               President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)               Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all

 

5


 

meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)               Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.             Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

6


 

Section 13.             Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.             Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.             Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.             Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17.             Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

7


 

Section 18.             Reserved.

 

Section 19.             Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.             Exculpation and Indemnification.

 

(a)                Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)               To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)               A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or

 

8


 

statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.             Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

9

 

Section 23.             Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.             Dissolution.

 

(a)                The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)               Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)               The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.             Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any

 

10


 

portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.             Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.             Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 28.             Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.             Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.             Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.             Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

11


 

Section 32.             Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.             Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.             Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in ClubCorp Mortgage Borrower, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company

 

12


 

interests require delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

Section 35.             Tax Status.

 

The Company is intended to be disregarded entity for United States federal tax purposes.

 

[SIGNATURE PAGE FOLLOWS]

 

13


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CLUBCORP MEZZANINE BORROWER, LLC

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name: Ingrid Keiser

 

 

Title: Secretary

 

 

 

Signature Page to the A&R LLC Agreement – ClubCorp Mortgage Borrower LLC

 


 

SCHEDULE A

 

Definitions

 

A.            Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on November 3, 2006, as corrected by the Certificate of Correction thereto, as filed with the Secretary of State of the State of Delaware on November 6, 2006, and as amended or amended and restated from time to time.

 

“Company” means ClubCorp Mortgage Borrower, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting

 

A-1


 

securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp Mezzanine Borrower, LLC, as the member to the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.            Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2

 

SCHEDULE B

 

Member

 

 

 

 

 

Agreed Value of

 

 

 

Name

 

Mailing Address

 

Capital
Contribution

 

Membership
Interest

 

ClubCorp Mezzanine Borrower, LLC

 

c/o ClubCorp, Inc.

 

$100

 

100%

 

 

3030 LBJ Freeway, Suite 600

 

 

 

 

 

 

 

Dallas, TX 75234-7703

 

 

 

 

 

 

 

Attention: Director of Finance

 

 

 

 

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.                          Eric L. Affeldt

2.                          Eric C. Resnick

3.                          Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CLUBCORP MORTGAGE BORROWER, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number:

 

% of Interests

 

ClubCorp Mortgage Borrower, LLC, a Delaware limited liability company (the “Company”), hereby certifies that                                 (the “Holder”) is the registered owner of                              % of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER             , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in ClubCorp Mortgage Borrower, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by                                          as of the date set forth below.

 

Dated:

 

 

 

 

 

E-1


 

(REVERSE SIDE OF CERTIFICATE

FOR INTERESTS OF CLUBCORP MORTGAGE BORROWER, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                   (print or typewrite name of Transferee),                              (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                               , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

(Transferor)

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

E-2


 EX-3.56(A) 112 a2202241zex-3_56a.htm EX-3.56(A)

Exhibit 3.56(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP PORTER VALLEY COUNTRY CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Porter Valley Country Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Porter Valley Country Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Porter Valley Country Club, in the City of Northridge, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

2


 

whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.56(B) 113 a2202241zex-3_56b.htm EX-3.56(B)

Exhibit 3.56(b)

 

BY-LAWS

 

OF

 

CLUBCORP PORTER VALLEY COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without .a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9


 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.57(A) 114 a2202241zex-3_57a.htm EX-3.57(A)

Exhibit 3.57(a)

 

FILED

 

IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

 

 

 

FEB 02 1999
No. C 1170-86

 

/s/ Dean Heller

 

DEAN HELLER, SECRETARY OF STATE

 

 

CERTIFICATE OF AMENDMENT

TO

ARTICLES OF INCORPORATION

OF

ASSOCIATE CLUBS PUBLICATIONS, INC.

 

We the undersigned as President and Secretary of ASSOCIATE CLUBS PUBLICATIONS, INC. do hereby certify:

 

That the Board of Directors of said corporation at a meeting duly convened and held on the 4th day of January, 1999, adopted a resolution to amend the original Articles of Incorporation, as follows:

 

Article I shall be amended to read as follows:

 

The name of this corporation is: “ClubCorp Publications, Inc.”.

 

The number of shares of the corporation outstanding and entitled to vote on such amendment to the Articles of Incorporation is 1,000; that the said change of name and amendment to the Articles of Incorporation has been consented to and approved by a majority vote of the stockholders holding at least a majority or stock outstanding and entitled to vote thereon at a special meeting of Shareholders duly convened and held on January 4, 1999.

 

 

Dated: January 4, 1999.

 

 

 

 

ASSOCIATE CLUBS PUBLICATIONS, INC.

 

 

 

By:

/s/ Gerry Smith

 

 

Gerry Smith, President

 

 

 

 

By:

/s/ Thomas T. Hensiee

 

 

Thomas T. Hensiee, Secretary

 


 

THE STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, the undersigned authority, a Notary Public in and for Dallas County, Texas on this 4th day of January, 1999, personally appeared Gerry Smith and Thomas T. Hensiee who, after being by me duly sworn, declared that he was the person who signed the foregoing document as President and Secretary and that the statements contained therein are true.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 4th day of January, 1999.

 

 

/s/ Shannon Bowman

 

Notary Public, State of Texas

 

[Notary Public Seal]

 


 

FILED

FILING FEE: $75.00

IN THE OFFICE OF THE

BY:

PAGE & ADDISON

SECRETARY OF STATE OF THE

 

SUITE 700

STATE OF NEVADA

 

14651 DALLAS PKWY.

 

 

DALLAS, TEXAS 75240

FEB 19 1986

 

 

 

WM D. SWACKHAMER SECRETARY OF STATE

 

 

 

/s/ WM D. SWACKHAMER

 

 

No. 1170-86

 

 

 

ARTICLES OF INCORPORATION

 

OF

 

ASSOCIATE CLUB PUBLICATIONS, INC.

 

KNOW ALL MEN BY THESE PRESENTS:

 

That I, the undersigned, for the purpose of forming a corporation under and pursuant to the laws of the State of Nevada, do hereby certify that:

 

ARTICLE I

 

The name of this corporation is ASSOCIATE CLUB PUBLICATIONS, INC.

 

ARTICLE II

 

The principal office and place of business in Nevada of this corporation shall be located at One East First Street, Reno, Nevada 89501, in the County of Washoe.

 

Offices for the transaction of any business of the corporation, and where meetings of the Board of Directors and of the stockholders may be held, may be established and maintained in any other part of the State of Nevada, or in any other state, territory or possession of the United States of America, or in any foreign country.

 

ARTICLE III

 

The nature of the business and objects and purposes proposed to be transacted, promoted or carried on by the corporation are to engage in any lawful activity.

 

ARTICLE IV

 

The total authorized capital stock of the corporation shall consist of one thousand (1,000) shares, with a par value of $1.00 per share, all of which shall be entitled to voting power.

 

ARTICLE V

 

The members of the governing board of the corporation shall be styled Directors, and the number thereof at the inception of this corporation shall be three (3) or more. The number of Directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of the corporation and the statutes of the State of Nevada. Directors need not be shareholders, but shall be full age and at least one

 


 

shall be a citizen of the United States. The names and post office addresses of the first Board of Directors, which shall consist of three (3) persons, and who shall hold office until their successors are duly elected and qualified are as follows:

 

Names

 

Addresses

 

 

 

Murry E. Page

 

14651 Dallas Parkway, Suite 700
Dallas, Texas 75240

 

 

 

Randolph D. Addison

 

14651 Dallas Parkway, Suite 700
Dallas, Texas 75240

 

 

 

John M. Theirl

 

14651 Dallas Parkway, Suite 700
Dallas, Texas 75240

 

ARTICLE VI

 

The capital stock of the corporation, after the amount of the subscription price has been paid in money, property or services, as the Directors shall determine, shall not be subject to assessment to pay the debts of the corporation, nor for any other purpose, and no stock issued as fully paid up shall ever be assessable or assessed, and the Articles of Incorporation shall not be amended in this particular.

 

ARTICLE VII

 

This corporation shall have perpetual existence.

 

ARTICLE VIII

 

The name and address of the incorporator signing these Articles of Incorporation is as follows:

 

Name

 

Address

 

 

 

Murry E. Page

 

14651 Dallas Parkway, Suite 700
Dallas, Texas 75240

 

IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of Incorporation this 13th day of February 1986.

 

 

/s/ Murry E. Page

 

Murry E. Page

 


 

THE STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

On this 13th day of February, 1986, personally appeared before me, a Notary Public in and for said County and State, MURRY E. PAGE, who acknowledged to me that he is the individual who executed the foregoing document, and that he did so freely and voluntarily and for the uses and purposes therein mentioned.

 

[Notary Public Seal]

/s/ Lynn Zimmermann

 

Notary Public, State of Texas

 

 

FILED

FILING FEE: $50.00

IN THE OFFICE OF THE

BY:

PAGE & ADDISON

SECRETARY OF STATE OF THE

 

14651 DALLAS PARKWAY

STATE OF NEVADA

 

SUITE 700

 

 

DALLAS, TEXAS 75240

MAR 20 1986

 

 

 

 

 

WM D. SWACKHAMER SECRETARY OF STATE

 

 

 

 

 

/s/ WM D. SWACKHAMER

 

 

 

No. 1170-86

 

 

 

 

ARTICLES OF AMENDMENT

TO

ARTICLES OF INCORPORATION

OF

ASSOCIATE CLUB PUBLICATIONS, INC.

 

Pursuant to the laws of the State of Nevada, the undersigned corporation adopts the following Articles of Amendment which change the name of the corporation from ASSOCIATE CLUB PUBLICATIONS, INC. to ASSOCIATE CLUBS PUBLICATIONS, INC.

 

ARTICLE ONE

 

The name of the corporation is ASSOCIATE CLUB PUBLICATIONS, INC.

 

ARTICLE TWO

 

The following amendment to the Articles of Incorporation was adopted by the incorporator of the corporation on March 12, 1986.

 

‘‘The name of the corporation ASSOCIATE CLUB PUBLICATIONS, INC. is hereby changed to ASSOCIATE CLUBS PUBLICATIONS, INC.”

 

ARTICLE THREE

 

No shares have been issued.

 

 

 

ASSOCIATE CLUB PUBLICATIONS, INC.

 

 

 

By

/s/ Murry E. Page

 

 

Murry E. Page, Incorporator

 

STATE OF TEXAS

*

 

*

COUNTY OF DALLAS

*

 

Before me, a notary public, on this day personally appeared Murry E. Page, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are true and correct.

 

Given under my hand and seal of office this 12th day of March, 1986.

 

 

/s/ Linda L. Blanton

 

Notary Public, State of Texas

 

 

My Commission Expires:

 

1-12-89

 

 

[Notary Public Seal]

 


 

CERTIFICATE OF MERGER

 

MERGING

 

ASSOCIATE CLUB PUBLICATIONS, INC.

(A TEXAS CORPORATION)

 

INTO

 

ASSOCIATE CLUBS PUBLICATIONS, INC.

(A NEVADA CORPORATION)

 

FILED AT THE REQUEST OF:

 

 

RENO CARSON MESSENGER SERVICE

 

527 LANDER STREET

 

RENO, NEVADA 89509

 

 

FILING DATE 4-21-86

 

FILING FEE: $50.00

 

FILE #1170-86

 


 

 

FILED

FILING FEE: $50.00

IN THE OFFICE OF THE

BY:

RENO CARSON MESSENGER SE

SECRETARY OF STATE OF THE

 

527 LANDER STREET

STATE OF NEVADA

 

RENO, NEVADA 89509

 

 

 

APR 21 1986

 

 

 

 

 

WM D. SWACKHAMER SECRETARY OF STATE

 

 

 

 

 

/s/ WM D. SWACKHAMER

 

 

 

No. 1170-86

 

 

 

 

CERTIFICATE OF MERGER

 

OF

ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS)

AND

ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA)

 

Pursuant to the provisions of 78.010-78.790 of the Nevada Revised Statutes of Nevada, the undersigned foreign and domestic corporations adopt the following Articles of Merger for the purpose of merging them into one of such corporations:

 

1.                          The name of the undersigned corporations and the States under the laws of which they are respectively organized are.

 

Name of Corporation

 

State

 

 

 

Associate Club Publications, Inc.

 

Texas

Associate Clubs Publications, Inc.

 

Nevada

 

2.                          The laws of the State under which such foreign corporation is organized permit such Merger.

 

3.                          The name of the surviving corporation is ASSOCIATE CLUBS PUBLICATIONS, INC., is to be governed by the laws of the State of Nevada, its Articles of Incorporation shall remain the same and not be amended.

 

4.                          The Plan of Merger attached hereto was approved by the undersigned domestic corporation in the manner prescribed by the Texas Business Corporation Act, and was approved, adopted, certified, executed and acknowledged by each constituent corporation in accordance with 78.0100-78.790 of the Nevada Revised Statutes of Nevada.

 

5.                          The number of shares outstanding, and the designation and number of outstanding shares of each class entitled to vote as a class on such Plan, are as follows:

 

 

 

Number

 

Entitled to Vote As a Class

Name of Corporation

 

of Shares 
Outstanding

 

Designation 
of Class

 

Number 
of Shares

 

 

 

 

 

 

 

Associate Club Publications, Inc. (Texas)

 

1,000

 

Common

 

1,000

 

6.                          The total number of shares voted for and against such Plan, respectively, and, as to each class entitled to vote thereon as a class, the number of shares of such class voted for and against such Plan, respectively, are as follows:

 


 

 

 

 

 

 

 

NUMBER OF SHARES

 

 

Total

 

Total

 

Entitled to Vote As a Class

 

 

Voted

 

Voted

 

 

 

Voted

 

Voted

Name of Corporation

 

For

 

Against

 

CLASS

 

For

 

Against

 

 

 

 

 

 

 

 

 

 

 

Associate Club Publications, Inc. (Texas)

 

1,000

 

-0-

 

Common

 

1,000

 

-0-

 

7.                          ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA), the surviving corporation, hereby (i) agrees that it may be served with process in the State of Nevada in any proceeding for the enforcement of any obligation of the undersigned domestic corporation and in any proceeding for the enforcement of the rights of a dissenting shareholder of such domestic corporation against the surviving corporation; (ii) irrevocably appoints the Secretary of State of Nevada as its agent to accept service of process in any such proceeding; and (iii) agrees that it will promptly pay to the dissenting shareholders of such domestic corporation the amount, if any, to which they shall be entitled under the provisions of the Texas Business Corporation Act with respect to the rights of dissenting shareholders.

 

8.                          A fully executed copy of the Agreement of Merger is on file at the principal place of business of the surviving corporation at Four Metro Square, 2711 LBJ Freeway, Dallas, Texas 75234. A copy of the Agreement of Merger will be given at no cost to all stockholders of each constituent corporation on request.

 

9.                          The authorized capital stock of ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA) is 1,000 shares.

 

DATED this 20th day of February, 1986.

 

 

ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation

 

 

 

 

 

By

/s/ Randolph D. Addison

 

 

Randolph D. Addison, President

 

[CORPORATE SEAL]

By

/s/ John M. Theirl

 

 

John M. Theirl, Secretary

 


 

THE STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, the undersigned authority, on this day personally appeared Randolph D. Addison and John M. Theirl, the President and Secretary, respectively, of ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacities therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 20th day of February, 1986.

 

[Notary Public Seal]

/s/ Lynn Zimmermann

 

Notary Public, State of Texas

 

 

 

 

 

[Printed or Typed Name of Notary]

 

 

 

My Commission Expires:

 

 

 

PLAN AND AGREEMENT OF MERGER

 

CHANGE IN STATE OF ORGANIZATION ONLY

 

ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS)

INTO

ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA)

 

PLAN AND AGREEMENT OF MERGER (hereinafter referred to as this “Agreement”), dated as of February 20, 1986, by and between ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation (hereinafter referred to as “ACP-Nev.”) and ASSOCIATE CLUB PUBLICATIONS. INC., a Texas corporation (hereinafter referred to as “ACP-TX”), said corporations being hereinafter sometimes collectively referred to as the Constituent Corporations”.

 

W I T N E S S E T H:

 

WHEREAS, ACP-Nev is a corporation duly organized and existing under the laws of the State of Nevada, having been incorporated on February 19, 1986, under the name “Associate Club Publications, Inc.”, which was later changed to “Associate Clubs Publications, Inc.” on March 20 1986 through an Amendment to Articles of Incorporation. The registered office of ACP-Nev. being located at One East First Street, County of Washoe, Reno, Nevada 89501; and the name of its registered agent in charge thereof being The Corporation Trust Company of Nevada. ACP-TX is a corporation duly organized and existing under the laws of the State of Texas, having been incorporated on May 28, 1982, under the name “Associate Club Publications, Inc.”, with the registered office of ACP-TX being located at 3333 Golfing Green Drive, Dallas, Dallas County, Texas 75234, and its registered agent being James E. Maser; and

 

WHEREAS, the authorized capital stock of ACP-Nev. consists of 1,000 shares of Common Stock, par value $1.00 per share; and

 

WHEREAS, the authorized capital stock of ACP-TX consists of 1,000 shares of Common Stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding; and

 

WHEREAS, the Boards of Directors of the Constituent Corporations deem it advisable for the general welfare and advantage of the Constituent Corporations and their respective shareholders that the Constituent Corporations merge into a single corporation pursuant to this Agreement, and the Constituent Corporations respectively desire to so merge pursuant to this Agreement and pursuant to the applicable provisions of the laws of the States of Nevada and Texas,

 

NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereby agree, in accordance with the applicable provisions of the laws of the States of Nevada and Texas, that the Constituent Corporations shall be merged into a single corporation, to wit: ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation.

 


 

one of the Constituent Corporations, which is a new corporation, and which shall continue its corporate existence and be the corporation surviving the merger (said corporation hereinafter being sometimes called the “Surviving Corporation”), and the terms and conditions of the merger hereby agreed upon (hereinafter called the “Merger”) which the parties covenant to observe, keep and perform and the mode of carrying the same into effect are and shall be as hereafter set forth:

 

ARTICLE I

 

EFFECTIVE TIME OF THE MERGER

 

1.01. At the effective time of the Merger, the separate existence of ACP-TX shall cease and ACP-TX shall be merged into the Surviving Corporation. Consummation of this Agreement shall be effected on the date on which a Certificate of Merger in substantially the form annexed hereto as Exhibit “A” is filed in the office of the Secretary of State of the State of Texas and such Certificate of Merger and this Agreement are filed in the office of the Secretary of State of the State of Nevada and the Great Seal of the State is Nevada is affixed thereto, all after satisfaction of the respective requirements of the applicable laws of said states prerequisite to such filings.

 

ARTICLE II

 

GOVERNING LAW;

 

CERTIFICATE OF INCORPORATION

 

2.01. The laws which are to govern the Surviving Corporation are the laws of the State of Nevada. The Certificate of Incorporation, as heretofore amended, shall, at the effective time of the Merger, remain in effect thereafter until the same shall be further amended or altered in accordance with the provisions thereof.

 

ARTICLE III

 

BYLAWS

 

3.01. The bylaws of ACP-Nev. at the effective time of the Merger shall be the bylaws of the surviving Corporation until the same shall be altered or amended in accordance with the provisions thereof.

 

ARTICLE IV

 

DIRECTORS AND OFFICERS

 

4.01. The directors of ACP-Nev. at the effective time of the Merger shall be the directors of the Surviving Corporation until their respective successors are duly elected and qualified. Subject to the authority of the Board of Directors as provided by law and the bylaws of the Surviving Corporation, the officers of ACP-Nev. at the effective time of the Merger shall be the officers of the Surviving Corporation.

 

2


 

ARTICLE V

 

CONVERSION OF SHARES IN THE MERGER

 

5.01. The mode of carrying into effect the Merger provided in this Agreement and the manner and basis of converting the shares of the Constituent Corporations into shares of the Surviving Corporation are as follows:

 

5.011. ACP-Nev.’s Common Stock. None of the shares of Common Stock, par value $1.00 per share, of ACP-Nev. have been issued at the effective time of the Merger.

 

5.012. ACP-TX’s Common Stock. At the effective time of the Merger, each share of Common Stock, par value $1.00 per share, of ACP-TX issued and outstanding shall become one (1) share of Common Stock, par value $1.00 per share, of the Surviving Corporation, and each holder of outstanding Common Stock of ACP-TX, upon surrender to the Surviving Corporation of one or more stock certificates for Common Stock of ACP-TX for cancellation, shall be entitled to receive one or more stock certificates for the full number of shares of Common Stock of the Surviving Corporation into which the Common Stock of ACP-TX so surrendered shall have been converted as aforesaid.

 

5.013. Surrender of ACP-TX Certificates. As practicable after the Merger becomes effective, the stock certificates representing Common Stock of ACP-TX issued and outstanding at the time the Merger becomes effective may be surrendered for exchange to the Surviving Corporation as above provided. Until so surrendered for exchange, each such stock certificate nominally representing Common Stock of ACP-TX shall be deemed for all corporate purposes to evidence the ownership of the number of shares of Common Stock of the Surviving Corporation which the holder thereof would be entitled to receive upon its surrender to the Surviving Corporation.

 

5.014. Fractional Interests. No fractional shares of Common Stock of the Surviving Corporation or certificate or scrip representing the same shall be issued.

 

5.015. Status of Common Stock. All shares of Common Stock of the Surviving Corporation into which shares of Common Stock of ACP-TX are converted as herein provided shall be fully paid and non-assessable and shall be issued in full satisfaction of all rights relating to such shares of Common Stock of ACP-TX.

 

3


 

ARTICLE VI

 

EFFECT OF THE MERGER

 

6.01. At the effective time of the Merger, the Surviving Corporation shall succeed to, without other transfer, and shall possess and enjoy all the rights, privileges, immunities, powers and franchises, both of a public and a private nature, and be subject to all the restrictions, disabilities and duties of each of the Constituent Corporations, and all the rights, privileges, immunities, powers and franchises of each of the Constituent Corporations and all property, real, personal and mixed, and all debts due to either of said Constituent Corporations on whatever account, for stock subscriptions as well as for all other things in action or belonging to each of said corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, immunities, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the Surviving Corporation as they were of the respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in either of said Constituent Corporations shall not revert or be in any way impaired by reason of the Merger; provided, however, that all rights of creditors and all liens upon any property of either of said Constituent Corporations shall be preserved unimpaired, limited in lien to the property affected by such liens at the effective time of the Merger, and all debts, liabilities and duties of said Constituent Corporations, respectively, shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by the Surviving Corporation.

 

ARTICLE VII

 

ACCOUNTING MATTERS

 

7.01. The assets and liabilities of the Constituent Corporations as of the effective time of the Merger shall be taken up on the books of the Surviving Corporation at the amounts at which they shall be carried at that time on the books of the respective Constituent Corporations. The amount of capital of the Surviving Corporation after the Merger shall be equal to the sum of the aggregate par value of the Common Stock that will remain issued upon the Merger. The surplus of the Surviving Corporation after the Merger, including any surplus arising in the Merger, shall be available to be used for any legal purposes for which surplus may be used.

 

ARTICLE VIII

 

APPROVAL OF SHAREHOLDERS;

 

FILING OF CERTIFICATE OF MERGER

 

8.01. This Agreement shall be submitted to the shareholders of ACP-TX and the Board of Directors of ACP-Nev. as provided by law and their respective certificates of incorporation at meetings which shall be

 

4


 

held on or before March 31, 1986, or such later date as the Boards of Directors of the Constituent Corporations shall mutually approve. The respective designations and numbers of shares of Common Stock of ACP-TX outstanding on the date hereof and a statement as to the shares of each class of Common Stock of ACP-TX entitled to vote upon the adoption and approval of the Merger are set forth in Exhibit “A” hereto. After such adoption and approval, and subject to the conditions contained in this Agreement, a Certificate of Merger in substantially the form annexed hereby as Exhibit “A” shall be signed, verified and delivered to the Secretary of State of the State of Texas for filing as provided by the Business Corporation Law of the State of Texas and such Certificate of Merger and this Agreement shall be filed with the Secretary of State of the State of Nevada pursuant to the Nevada statutes.

 

ARTICLE IX

 

ACP-TX’S REPRESENTATIONS AND WARRANTIES

 

9.01. ACP-TX represents and warrants to ACP-Nev. as follows:

 

9.011. Organization, Etc. ACP-TX is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas. ACP-TX has corporate power to carry on its business as it is now being conducted and is qualified to do business in every jurisdiction in which the character and location of the assets owned by it or the nature of the business transacted by it require qualification.

 

9.012. Capitalization. ACP-TX’s capitalization consists of 1,000 authorized shares of Common Stock (par value $1.00 per share), of which 1,000 shares are issued and outstanding as of the date hereof. Each issued share is validly issued, fully paid, non-assessable and each outstanding share is entitled to one vote.

 

9.013. Financial Statements. ACP-TX has delivered to ACP-Nev. copies of its consolidated balance sheet as of December 25, 1985, and related statements of consolidated earnings and retained earnings for the fiscal period ended on such date. All of such financial statements are true and complete and have been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods indicated, except as otherwise indicated in the notes thereto. Such balance sheet presents a true and complete statement as of its date of the financial condition and assets and liabilities of ACP-TX. Except as and to the extent reflected or reserved against therein (including the notes thereto), ACP-TX does not have any liabilities or obligations (whether accrued, absolute, contingent or otherwise) of a nature customarily reflected in a corporate balance sheet or the notes thereto, prepared in accordance with generally accepted accounting principles. The statements of earnings and retained earnings presents a true and complete statement of the results of operations of ACP-TX for the period indicated.

 

5


 

9.014. Further Warranties and Representations.

 

9.0141. ACP-TX has and on the closing date will have good and marketable title in fee simple to all lands and buildings shown as assets in its records and books of account, free and clear of all liens, encumbrances and charges except as reflected in the aforesaid financial statements and except for current taxes and assessments not delinquent and liens, encumbrances and charges shown in its records and books of account which are not substantial in character or amount, and do not materially detract from the value or interfere with the use of the properties subject thereto or affected thereby. ACP-TX has and on the closing date will have valid leases under which it is entitled to occupy and use in its business all real property of which it is lessee, and ACP-TX has no knowledge of any default under any such lease.

 

9.0142. ACP-TX has and on the closing date will have good and marketable title to the machinery, equipment, merchandise, materials, supplies and other property of every kind, tangible or intangible, contained in its offices, plants and other facilities or shown as assets in its records and books of account, free and clear of all liens, encumbrances and charges except as reflected in the aforesaid financial statements and except for liens, encumbrances and charges, if any, which do not materially detract from the value of or interfere with the use of the properties subject thereto or affected thereby. ACP-TX has and on the closing date will have valid leases under which it is entitled to use in its business all personal property of which it is the lessee, and ACP-TX has no knowledge of any default under any such lease.

 

9.0143. All taxes imposed by the U.S. or by any foreign country or by any state, municipality, subdivision or instrumentality of the U.S. or of any foreign country or by any other taxing authority which are due or payable by ACP-TX and all price redetermination or renegotiation claims asserted or that may be asserted against it have been paid in full or are adequately provided for by reserves shown in the records and books of account of ACP-TX and will be so paid or provided for on the closing date. ACP-TX has no knowledge of any unassessed tax deficiency proposed or threatened against it.

 

9.0144. ACP-TX is adequately insured with respect to risks normally insured against by companies similarly situated. All such policies are in full force and effect.

 

9.0145. There is no suit, action or legal or administrative proceeding pending, or to the knowledge of ACP-TX threatened, against it which, if adversely determined, might materially and adversely affect the financial condition of ACP-TX or the conduct of its business nor is there any decree, injunction or order of any court, governmental department or agency outstanding against ACP-TX having any such effect.

 

9.0146. ACP-TX is not in default in any material respect under the terms of any material outstanding contract, agreement, lease or other commitment.

 

6


 

9.0147. At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of or constitute a default under any Indenture, mortgage, deed of trust or other material agreement or instrument to which ACP-TX is a party.

 

9.0148. ACP-TX has all necessary licenses, franchises, permits and other governmental authorizations and are valid and sufficient for all businesses presently carried on by ACP-TX.

 

ARTICLE X

 

ACP-NEV.’S REPRESENTATIONS AND WARRANTIES

 

10.01. ACP-Nev. represents and warrants to ACP-TX as follows:

 

10.011. Organization. ACP-Nev. is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. ACP-Nev. has corporate power to carry on its business as it is now being conducted and is qualified to do business in every jurisdiction in which the character and location of the assets owned by it or the nature of the business transacted by it require qualification.

 

10.012. Capitalization. ACP-Nev.’s capitalization consists of 1,000 authorized shares of Common Stock (par value $1.00 per share).

 

10.013. Shares to be Issued. At the effective time of the Merger, the Surviving Corporation will have duly reserved for issuance a sufficient number of shares of Common Stock of ACP-Nev. to permit conversion, at the basic conversion rate applicable thereto, of such shares of Common Stock, when issued upon such conversion, will be duly and validly authorized and issued and fully paid and non-assessable, and no stockholder of the Constituent Corporations will have any pre-emptive right of subscription or purchase in respect thereof.

 

10.014. Financial Statements. ACP-Nev. does not have, as of the date hereof, any liabilities or obligations (whether accrued, absolute, contingent or otherwise) of a nature customarily reflected in corporate financial statements or the notes thereto, prepared in accordance with generally accepted accounting principles.

 

10.015. Absence of Certain Changes or Events. From February 19, 1986, to the date hereof, there has not been:

 

10.0151. Any change in the corporate status, businesses, operations or financial condition of ACP-Nev. other than changes in the ordinary course of business, none of which has been materially adverse in relation to ACP-Nev.; and

 

10.0152. Any declaration, setting aside or payment of any dividend or other distribution with respect to ACP-Nev.’s Common Stock, or any purchase, redemption or acquisition of such stock by ACP-Nev.; and

 

7


 

10.0153. Any other event or condition of any character which has materially and adversely affected the corporate status, businesses, operations or financial condition of ACP-Nev. taken as a whole.

 

10.016. Proxy Statement Information. The information provided and to be provided by ACP-Nev. to ACP-TX for use in the proxy statement to be used by ACP-TX in connection with the Merger does not and will not contain any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, and does not and will not omit to state any material fact necessary in order to make the statements therein not false or misleading.

 

10.017. Litigation and Proceedings. There is no suit, action or legal or administrative proceeding pending, or to the knowledge of ACP-Nev. threatened against it, which, if adversely determined, might materially and adversely affect the financial condition of ACP-Nev. or the conduct of its business nor is there any decree, injunction or order of any court, governmental department or agency outstanding against ACP-Nev.

 

10.018. Material Contracts. ACP-Nev. is not in default in any material respect under the terms of any material outstanding contract, agreement, lease or other commitment.

 

10.019. No Conflict with Other Instruments. At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of or constitute a default under any indenture, mortgage, deed of trust or other material agreement or instrument to which ACP-Nev. is a party.

 

10.0110. Governmental Authorizations. ACP-Nev. has all necessary licenses, franchises, permits and other governmental authorizations and such are valid and sufficient for all businesses presently carried on by ACP-Nev.

 

10.0111. Brokers. All negotiations relative to this Agreement and the transactions contemplated hereby have been carried on by ACP-Nev. directly with ACP-TX and without the intervention of any other person, either as a result of any act of ACP-Nev. or otherwise to the knowledge of ACP-Nev., in such manner as to give rise to any valid claim against either of the parties for a finder’s fee, brokerage commission or other like payment.

 

ARTICLE XI

 

CONDUCT OF BUSINESS PENDING THE MERGER

 

11.01 From and after the date of this Agreement and prior to the effective time of the Merger, neither of the Constituent Corporations will, without the prior written consent of the other: (i) amend its Certificate of Incorporation or Bylaws except as may be necessary to enable it to carry out the provisions of this Agreement, (ii) engage in any material activity

 

8


 

or transaction or incur any material obligation (by contract or otherwise) except in the ordinary course of business, (iii) issue rights or options to purchase or subscribe to any shares of its capital stock or subdivide or otherwise change any such shares, (iv) issue or sell any shares of its Common Stack or securities convertible into shares of its Common Stock, or (v) declare or pay any dividends on or make any distributions in respect of any shares of its Common Stock. From and after the date of this Agreement and prior to the effective time of the Merger, ACP-TX will use its best efforts to preserve its business organization; to keep available to ACP-Nev. the services of ACP-TX’s present officers and employees; and to preserve for ACP-Nev. the goodwill of ACP-TX’s suppliers, customers and others having business relations with any of them.

 

ARTICLE XII

 

ADDITIONAL AGREEMENTS

 

12.01. The Constituent Corporations further agree as follows:

 

12.011. Access and Information. ACP-Nev. and ACP-TX hereby agree that each will give to the other and to the other’s accountants, counsel and other representatives full access during normal business hours throughout the period prior to the Merger to all of its properties, books, contracts, commitments and records, and that each will furnish the other during such period with all such information concerning its affairs as such other party may reasonably request. In the event of the termination of this Agreement, each party will deliver to the other all documents, work papers and other material obtained from the other relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, and will use its best efforts to have any information so obtained and not heretofore made public kept confidential.

 

12.012. Employee Benefit Plans. At the effective time of the Merger, ACP-Nev. will either (i) cause to be continued the ACP-TX Profit-Sharing Plan and all group life, accident, medical, surgical, hospitalization or other insurance plans or programs of ACP-TX as then in effect for the benefit of the employees covered thereby who become employees of the Surviving Corporation, or (ii) cause such employees to be included in corresponding plans or programs with provisions not less favorable than the plans or programs of ACP-TX.

 

12.013. Expenses. Upon a termination of this Agreement as provided in Section 3 of Article XIII hereof, each party will pay all costs and expenses incurred in its performance of and compliance with all agreements and conditions contained herein on its part to be performed.

 

12.014. Further Assurances. If at any time the Surviving Corporation shall consider or be advised that any further assignment or assurance in law or other action is necessary or desirable to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation, the title to any property or rights of ACP-TX acquired or to be acquired by or as a result of the Merger, the proper officers and directors of ACP-Nev., ACP-TX and the Surviving Corporation, respectively, shall be and they

 

9


 

hereby are severally and fully authorized to execute and deliver such proper deeds, assignments and assurances in law and take such other action as may be necessary or proper in the name of ACP-Nev. or the Surviving Corporation to vest, perfect or confirm title to such property or rights in the Surviving Corporation and otherwise carry out the purposes of this Agreement.

 

ARTICLE XIII

 

CONDITIONS PRECEDENT;

 

TERMINATION; GENERAL PROVISIONS

 

13.01. Conditions Precedent to ACP-Nev.’s Obligation. The obligation of ACP-Nev. to effect the Merger shall be subject to the following conditions (which may be waived in writing by ACP-Nev.):

 

13.011. The representations and warranties of ACP-TX herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; ACP-TX shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the effective time of the Merger.

 

13.012. No material change in the corporate status, businesses, operations or financial condition of ACP-TX shall have occurred since December 25, 1985 (whether or not covered by insurance), other than changes in the ordinary course of business, none of which has been materially adverse in relation to ACP-TX, taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations or financial condition of ACP-TX, taken as a whole.

 

13.013. ACP-Nev. shall have received such written consents and confirmations (or opinions of counsel to the effect that such consents or confirmations are not required) as it may reasonably request to the effect that the Surviving Corporation will succeed upon consummation of the Merger to all of ACP-TX’s right, title and interest in and to its material contracts, agreements, leases and other commitments and that the Surviving Corporation shall possess and enjoy all material licenses, franchises, permits and other governmental authorizations possessed by ACP-TX at the date hereof.

 

13.014. Any and all permits, approvals and other action of the Secretary of State of the State of Nevada and of any other jurisdiction required for the lawful consummation of the Merger shall have been obtained, and no such permit, approval or other action shall contain any provision which in the judgment of ACP-Nev. shall be unduly burdensome.

 

10

 

13.02.  Conditions Precedent to ACP-TX’S Obligation. The obligation of ACP-TX to effect the Merger shall be subject to the following conditions (which may be waived in writing by ACP-TX):

 

13.021.  The representations and warranties of ACP-Nev. herein contained shall be true as of and at the effective time of the Merger, with the same effect as though made at such time; ACP-Nev. shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the effective time of the Merger.

 

13.022.  No material change in the corporate status, businesses, operations or financial condition of ACP-Nev. shall have occurred since February 19, 1986 (whether or not covered by insurance), other than changes in the ordinary course of business and changes permitted by Article XI hereof, none of which has been materially adverse in relation to ACP-Nev., taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations or financial condition of ACP-Nev. taken as a whole.

 

13.03. Termination and Abandonment. Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and abandoned at any time before the effective time of the Merger, whether before or after adoption or approval of this Agreement by the shareholders of the Constituent Corporations under any one or more of the following circumstances:

 

13.031.  By the mutual consent of the Boards of Directors of the Constituent Corporations;

 

13.032.  By ACP-Nev. if, prior to the effective time of the Merger, the conditions set forth in Section 13.01 of this Article XIII shall not have been met;

 

13.033.  By ACP-TX, prior to the effective time of the Merger, the conditions set forth in Section 13.02 of this Article XIII shall not have been met;

 

13.034.  By either of the Constituent Corporations if any action or proceeding before any court or other governmental body or agency shall have been instituted or threatened to restrain or prohibit the Merger and such Constituent Corporation deems it advisable to proceed with the Merger; and

 

13.035.  By either of the Constituent Corporations if the requisite approval of both Constituent Corporations shall not have been obtained on or before April 15, 1986, or if the Certificate of Merger and this Agreement shall not have been filed as provided in Article I hereof on or before April 20, 1986.

 

11


 

Upon any such termination and abandonment, neither party shall have any liability or obligation hereunder to the other.

 

13 04.  General.  The headings in this Agreement shall not affect in any way its meaning or interpretation. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

13 05.  Amendments.  Any of the terms or conditions of this Agreement may be modified or waived at any time before the effective time of the Merger by the party which is, or the shareholders of which are, entitled to the benefit thereof upon the authority of the Board of Directors of such party, provided that any such modification or waiver shall in the judgment of the party making it not affect substantially or materially and adversely the benefits to such party or its shareholders intended under this Agreement.

 

IN WITNESS WHEREOF, this Agreement has been signed by a majority of the directors of each of the Constituent Corporations and each of the Constituent Corporations has caused its corporate seal to be hereunto affixed and attested by the signature of its Secretary, all as of the day and year first above written.

 

 

 

A majority of the directors of
ASSOCIATE CLUBS PUBLICATIONS, INC.

 

 

 

ASSOCIATE CLUBS PUBLICATIONS, INC.

 

/s/ Murry E. Page

Incorporated 1986 (Nevada)

 

Murry E. Page

 

 

 

[Corporate Seal]

 

/s/ John M. Theirl

 

 

John M. Theirl

 

 

 

Attest:

 

/s/ Randolph D. Addison

 

 

Randolph D. Addison

/s/ John M. Theirl

 

 

John M. Theirl, Secretary

 

 

 

12


 

 

 

A majority of the directors of
ASSOCIATE CLUB PUBLICATIONS, INC.

 

 

 

ASSOCIATE CLUB PUBLICATIONS, INC.

 

/s/ James E. Maser

Incorporated 1982 (Texas)

 

James E. Maser

 

 

 

[Corporate Seal]

 

/s/ Jerry W. Dickenson

 

 

Jerry W. Dickenson

 

 

 

Attest:

 

/s/ Richard S. Poole

 

 

Richard S. Poole

/s/ Randolph D. Addison

 

 

Randolph D. Addison, Secretary

 

 

 

The foregoing Plan and Agreement of Merger, having been duly executed by a majority of the directors of ACP-Nev. and ACP-TX, respectively, under the corporate seals of the respective corporations, and the said Plan and Agreement, of Merger having been duly approved or adopted by the Boards of Directors, and duly approved or adopted by the stockholders of ACP-TX in the manner provided by the laws of their respective states of incorporation, the Chairman of the Board and the President and the Secretary of said corporations do now execute this Plan and Agreement of Merger under the respective seals of said corporations by the authority of the directors of each and the stockholders of ACP-TX, as the act, deed and agreement of each of said corporations on this 20th day of February, 1986.

 

 

ASSOCIATE CLUBS PUBLICATIONS, INC.
(Nevada)

 

 

 

By

/s/ Murry E. Page

 

 

Murry E. Page
Chairman of the Board

 

 

 

 

By

/s/ Randolph D. Addison

 

 

Randolph D. Addison, President

 

 

 

[CORPORATE SEAL]

By

/s/ John M. Theirl

 

 

John M. Theirl, Secretary

 

13


 

 

ASSOCIATE CLUB PUBLICATIONS, INC.
(Texas)

 

 

 

By

/s/ James E. Maser

 

 

James E. Maser
Chairman of the Board

 

 

 

 

By

/s/ Richard S. Poole

 

 

Richard S. Poole, President

 

 

 

[CORPORATE SEAL]

By

/s/ Randolph D. Addison

 

 

Randolph D. Addison, Secretary

 

14

 

CERTIFICATE OF MERGER

 

OF

ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS)

AND

ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA)

 

Pursuant to the provisions of 78.010-78.790 of the Nevada Revised Statutes of Nevada, the undersigned foreign and domestic corporations adopt the following Articles of Merger for the purpose of merging them into one of such corporations:

 

1.                                       The name of the undersigned corporations and the States under the laws of which they are respectively organized are:

 

Name of Corporation

 

State

 

 

 

Associate Club Publications, Inc.

 

Texas

Associate Clubs Publications, Inc.

 

Nevada

 

2.                                       The laws of the State under which such foreign corporation is organized permit such Merger.

 

3.                                       The name of the surviving corporation is ASSOCIATE CLUBS PUBLICATIONS, INC., is to be governed by the laws of the State of Nevada, its Articles of Incorporation shall remain the same and not be amended.

 

4.                                       The Plan of Merger attached hereto was approved by the undersigned domestic corporation in the manner prescribed by the Texas Business Corporation Act, and was approved, adopted, certified, executed and acknowledged by each constituent corporation in accordance with 78.0100-78.790 of the Nevada Revised Statutes of Nevada.

 

5.                                       The number of shares outstanding, and the designation and number of outstanding shares of each class entitled to vote as a class on such Plan, are as follows:

 

 

 

Number

 

Entitled to Vote As a Class

 

Name of Corporation

 

of Shares
Outstanding

 

Designation
of Class

 

Number
of Shares

 

 

 

 

 

 

 

 

 

Associate Club Publications, Inc. (Texas)

 

1,000

 

Common

 

1,000

 

 

6.                                       The total number of shares voted for and against such Plan, respectively, and, as to each class entitled to vote thereon as a class, the number of shares of such class voted for and against such Plan, respectively, are as follows:

 

EXHIBIT "A" - page 1 of 6 pages


 

 

 

 

 

 

 

 

NUMBER OF SHARES

 

 

 

Total

 

Total

 

Entitled to Vote As a Class

 

 

 

Voted

 

Voted

 

 

 

Voted

 

Voted

 

Name of Corporation

 

For

 

Against

 

CLASS

 

For

 

Against

 

 

 

 

 

 

 

 

 

 

 

 

 

Associate Club Publications, Inc. (Texas)

 

1,000

 

-0-

 

Common

 

1,000

 

-0-

 

 

7.                                       ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA), the surviving corporation, hereby (i) agrees that it may be served with process in the State of Nevada in any proceeding for the enforcement of any obligation of the undersigned domestic corporation and in any proceeding for the enforcement of the rights of a dissenting shareholder of such domestic corporation against the surviving corporation; (ii) irrevocably appoints the Secretary of State of Nevada as its agent to accept service of process in any such proceeding; and (iii) agrees that it will promptly pay to the dissenting shareholders of such domestic corporation the amount, if any, to which they shall be entitled under the provisions of the Texas Business Corporation Act with respect to the rights of dissenting shareholders.

 

8.                                       A fully executed copy of the Agreement of Merger is on file at the principal place of business of the surviving corporation at Four Metro Square, 2711 LBJ Freeway, Dallas, Texas 75234. A copy of the Agreement of Merger will be given at no cost to all stockholders of each constituent corporation on request.

 

9.                                       The authorized capital stock of ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA) is 1,000 shares.

 

 

DATED this 20th day of February, 1986.

 

 

ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation

 

 

 

By

 

 

 

Randolph D. Addison, President

 

 

 

[CORPORATE SEAL]

By

 

 

 

John M. Theirl, Secretary

 

EXHIBIT "A" - page 2 of 6 pages


 

THE STATE OF TEXAS

 

§

 

 

§

COUNTY OF DALLAS

 

§

 

BEFORE ME, the undersigned authority, on this day personally appeared Randolph D. Addison and John M. Theirl, the President and Secretary, respectively, of ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacities therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 20th day of February, 1986.

 

 

 

 

Notary Public, State of Texas

 

 

 

 

 

[Printed or Typed Name of Notary]

 

 

 

My Commission Expires:

 

 

EXHIBIT "A" - page 3 of 6 pages


 

CERTIFICATE OF MERGER

 

OF

ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS)

AND

ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA)

 

The below named domestic and foreign corporations adopt the following certificate of merger for the purpose of merging them into ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA) pursuant to V.A.T.S., Article 5.03, Business and Commerce, Vol. 3A.

 

1.                                       The Plan of Merger attached hereto and made a part hereof by reference was approved by the stockholders of the undersigned corporation in the manner prescribed by statute.

 

2.                                       The number of shares outstanding, the designation and number of outstanding shares of each class entitled to vote as a class on such plan, and the number of shares voted for and against such plan, respectively, are as follows:

 

 

 

Number

 

Entitled to Vote As a Class

 

Name of Corporation

 

of Shares
Outstanding

 

Designation
of Class

 

Number
of Shares

 

 

 

 

 

 

 

 

 

Associate Club Publications, Inc. (Texas)

 

1,000

 

Common

 

1,000

 

 

 

 

 

 

 

 

NUMBER OF SHARES

 

 

 

Total

 

Total

 

Entitled to Vote As a Class

 

 

 

Voted

 

Voted

 

 

 

Voted

 

Voted

 

Name of Corporation

 

For

 

Against

 

CLASS

 

For

 

Against

 

 

 

 

 

 

 

 

 

 

 

 

 

Associate Club Publications, Inc. (Texas)

 

1,000

 

-0-

 

Common

 

1,000

 

-0-

 

 

3.                                       ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA), the surviving corporation, agrees that it may be served with process in the State of Nevada in any proceeding for the enforcement of any obligation of any domestic or any foreign corporation, previously amenable to suit in the State of Texas, which is a party to the merger, and in any proceeding for the enforcement of the rights of a dissenting shareholder of any such domestic corporation against ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA), the surviving corporation.

 

EXHIBIT "A" - page 4 of 6 pages


 

4.                                       ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA), the surviving corporation, hereby makes an irrevocable appointment of the Secretary of State of the State of Nevada as its agent to accept service of process in any proceeding mentioned in Paragraph 3. The post office address to which the Secretary of State shall mail a copy of process in any such proceeding is P.O. Box 819012, Dallas, Texas 75381.

 

5.                                       ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA), the surviving corporation, further agrees that it will promptly pay the dissenting stockholders of the Texas corporation which has merged with ASSOCIATE CLUBS PUBLICATIONS, INC. (NEVADA), the surviving corporation, the amount, if any, to which they shall be entitled under the provisions of V.A.T.S., Art. 5.03, Business and Commerce, with respect to the rights of dissenting shareholders.

 

6.                                       The merger is to become effective immediately on the filing of this certificate with the Secretary of State of the State of Texas.

 

 

DATED this 20th day of February, 1986.

 

 

 

ASSOCIATE CLUB PUBLICATIONS, INC., a Texas corporation

 

 

 

By

 

 

 

Richard S. Poole, President

 

 

 

[CORPORATE SEAL]

By

 

 

 

Randolph D. Addison, Secretary

 

 

 

 

 

 

 

ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation

 

 

 

By

 

 

 

Randolph D. Addison, President

 

 

 

[CORPORATE SEAL]

By

 

 

 

John M. Theirl, Secretary

 

EXHIBIT "A" - page 5 of 6 pages


 

THE STATE OF TEXAS

 

§

 

 

§

COUNTY OF DALLAS

 

§

 

BEFORE ME, the undersigned authority, on this day personally appeared Richard S. Poole and Randolph D. Addison, the President and Secretary, respectively, of ASSOCIATE CLUB PUBLICATIONS, INC., a Texas corporation, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacities therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 20th day of February, 1986.

 

 

 

 

Notary Public, State of Texas

 

 

 

 

 

[Printed or Typed Name of Notary]

 

 

 

My Commission Expires:

 

 

 

THE STATE OF TEXAS

 

§

 

 

§

COUNTY OF DALLAS

 

§

 

BEFORE ME, the undersigned authority, on this day personally appeared Randolph D. Addison and John M. Theirl, the President and Secretary, respectively, of ASSOCIATE CLUBS PUBLICATIONS, INC., a Nevada corporation, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacities therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 20th day of February, 1986.

 

 

 

 

Notary Public, State of Texas

 

 

 

 

 

[Printed or Typed Name of Notary]

 

 

 

My Commission Expires:

 

 

EXHIBIT "A" - page 6 of 6 pages

 

SECRETARY’S CERTIFICATE

 

I, Randolph D. Addison, Secretary of ASSOCIATE CLUB PUBLICATIONS. INC. (TEXAS), a corporation organized and existing under the laws of the State of Texas, hereby certify, as such secretary and under the seal of the said coporation, that the Agreement of Merger to which this certificate is attached, after having been duly signed on behalf of said corporation by the President and Secretary of ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS), a corporation of the State of Texas, was duly submitted to the stockholders of said ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS) at a special meeting of said stockholders called and held separately from the meeting of stockholders of any other corporation, upon notice duly given in accordance with the bylaws of said corporation and the laws of the State of Texas, for the purpose of considering and taking action upon said Agreement of Merger, that 1,000 shares of stock of said corporation were on said date issued and outstanding and that the holders of 1,000 shares voted by ballot in favor of said Agreement of Merger and the holders of zero (0) shares voted by ballot against same, the said affirmative vote representing at least a majority of the total number of shares of the outstanding capital stock of said corporation, and that thereby the Agreement of Merger was at said meeting duly adopted as the act of the stockholders of said ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS), and the duly adopted agreement of the said corporation.

 

WITNESS my hand and seal of said ASSOCIATE CLUB PUBLICATIONS, INC. on this 17th day of March, 1986.

 

 

 

 

[CORPORATE SEAL]

Randolph D. Addison, Secretary

 


 

THE STATE OF TEXAS

 

§

 

 

§

COUNTY OF DALLAS

 

§

 

BEFORE ME, the undersigned authority, on this day personally appeared Randolph D. Addison, Secretary of ASSOCIATE CLUB PUBLICATIONS, INC., a Texas corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 17th day of March, 1986.

 

 

 

 

Notary Public, State of Texas

 

 

 

 

 

[Printed or Typed Name of Notary]

 

 

 

My Commission Expires:

 

 

2


 

SECRETARY’S CERTIFICATE

 

I, Randolph D. Addison, Secretary of ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS), a corporation organized and existing under the laws of the State of Texas, hereby certify, as such secretary and under the seal of the said coporation, that the Agreement of Merger to which this certificate is attached, after having been duly signed on behalf of said corporation by the President and Secretary of ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS), a corporation of the State of Texas, was duly submitted to the stockholders of said ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS) at a special meeting of said stockholders called and held separately from the meeting of stockholders of any other corporation, upon notice duly given in accordance with the bylaws of said corporation and the laws of the State of Texas, for the purpose of considering and taking action upon said Agreement of Merger, that 1,000 shares of stock of said corporation were on said date issued and outstanding and that the holders of 1,000 shares voted by ballot in favor of said Agreement of Merger and the holders of zero (0) shares voted by ballot against same, the said affirmative vote representing at least a majority of the total number of shares of the outstanding capital stock of said corporation, and that thereby the Agreement of Merger was at said meeting duly adopted as the act of the stockholders of said ASSOCIATE CLUB PUBLICATIONS, INC. (TEXAS), and the duly adopted agreement of the said corporation.

 

WITNESS my hand and seal of said ASSOCIATE CLUB PUBLICATIONS, INC. on this 17th day of March, 1986.

 

 

 

/s/ Randolph D. Addison

[CORPORATE SEAL]

Randolph D. Addison, Secretary

 


 

THE STATE OF TEXAS

 

§

 

 

§

COUNTY OF DALLAS

 

§

 

BEFORE ME, the undersigned authority, on this day personally appeared Randolph D. Addison, Secretary of ASSOCIATE CLUB PUBLICATIONS, INC., a Texas corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 17th day of March, 1986.

 

[Notary Public Seal]

/s/ Lynn Zimmermann

 

Notary Public, State of Texas

 

 

 

 

 

[Printed or Typed Name of Notary]

 

 

 

My Commission Expires:

 

 

2


 EX-3.57(B) 115 a2202241zex-3_57b.htm EX-3.57(B)

Exhibit 3.57(b)

 

AMENDMENT TO
BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
ASSOCIATE CLUBS PUBLICATIONS, INC.

 

The Bylaws of the Corporation are hereby amended by changing Article III, Section 2. Number of Directors, so that, as amended, said Article shall be and read as follows:

 

“The authorized number of Directors of the corporation shall be unlimited until changed until changed by amendment of the Articles or by a bylaw duly adopted by the shareholder amending this section. Directors need not be shareholders of the corporation.”

 

The Bylaws of the Corporation are hereby further amended by changing Article IV, Section 1. Officers, so that, as amended, said Article shall be and read as follows:

 

“The corporation shall have a President/Publisher, a Vice President/Editor in Chief, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.”

 

The Bylaws of the Corporation are hereby further amended by changing Article IV, Section 2. Other Officers, so that, as amended, said Article shall be and read as follows:

 

“The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, and such other officer shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.”

 

This Amendment is made in the manner prescribed by the provisions of Section 78.320 through 78.335 of the General Corporation Law of Nevada and has been approved by the sole shareholder of the Corporation in a Consent in Lieu of Annual Meeting of Shareholder executed March 12,1998.

 


 

BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
ASSOCIATE CLUB PUBLICATIONS, INC.

 

ARTICLE I

 

Offices

 

Section 1.  Principal Office. The corporation will maintain offices for the transaction of business of the corporation at Four Metro Square, 2711 LBJ Freeway, Dallas, Texas 75234.

 

Section 2.  Other Offices. Branch or subordinate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

ARTICLE II

 

Meetings of Shareholders

 

Section 1.  Place of Meetings. All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be

 

(i) designated by the Board of Directors, or

 

(ii) consented to by the written consent of all shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or

 

(iii) in the city of residence of any shareholder holding over 2/3 of the capital stock of the corporation.

 

Section 2.  Annual Meetings. The annual meeting of shareholders shall be on the 4th Monday of January in each year at 10:00 a.m.; provided, however, that should said day fall upon a legal holiday, then any such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the power of the shareholders.

 

Section 3.  Special Meetings. Special meetings of the shareholders, for any purpose whatsoever, may be called at any time either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President, or Secretary. The officer forthwith shall cause notice to be given as provided in the next section that a meeting will be held at a time, fixed by the officer, not less than ten (10) or more than sixty (60) days after the receipt of the request.

 


 

Section 4.  Notice of Meeting. The Secretary or his delegate shall, not less than ten (10) days prior to any meeting of shareholders, cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in some newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. In addition, no action may be taken at any meeting on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation; (b) a proposal to merge or consolidate with another corporation, domestic or foreign; (c) a proposal to reduce the stated capital of the corporation; (d) a proposal to amend the Articles of Incorporation; (e) a proposal to wind up and dissolve the corporation; or (f) a proposal to adopt a plan of distribution of shares, securities or any other consideration other than money in the process of winding up.

 

Section 5.  Consent of Absentees. The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes to the meeting.

 

Section 6.  Quorum. The presence in person or by proxy of persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

Section 7.  Voting. Unless a record date for voting purposes be fixed as provided in Section 1 of Article V of these bylaws only persons in whose names shares entitled to vote stand on the stock of shareholders shall be entitled to vote at such meeting. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders. Voting rights shall be non-cumulative. Except as herein or in the Articles of Incorporation otherwise provided, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereon. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

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Section 8.  Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

Section 9.  Adjourned Meetings and Notice Thereof. Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting, other than by announcement at the meeting at which such adjournment is taken.

 

Section 10.  Action Without Meeting. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting, and filed with the Secretary of the corporation; provided, however, that a meeting as provided herein shall be held for dissolution, transfer of all or substantially all of the assets of the corporation, or for merger or consolidation of the corporation with other corporations if same is required under applicable law.

 

ARTICLE III

 

Directors

 

Section 1.  Powers. Subject to limitations imposed by law or the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an executive committee and other committees, and may delegate to the executive committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The executive committee shall be composed of two or more directors.

 

Section 2.  Number of Directors. The authorized number of Directors of the corporation shall be not less than one nor more than five until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

Section 3.  Election and Term of Office. The Directors shall be elected at the annual meetings of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose.

 

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Directors shall hold office until the election and qualification of their respective successors.

 

Section 4.  Vacancies. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall in a reasonable time at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Directors, or if the authorized number of Directors is increased, or if the shareholders fail, at any annual or special meeting of shareholders at which any Director is elected, to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of his term of office.

 

Section 5.  Quorum. A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

Section 6.  Place of Directors’ Meetings. Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any place within or without the State of Texas which has been designated from time to time by resolution of the Board or by written consent of all of the Directors.

 

Section 7.  Regular Meetings. Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of organizing, electing officers, and transacting other business. No notice of such meeting need be given.

 

Section 8.  Special Meetings. Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice-President, or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each Director, or sent to each Director by mail or

 

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other form of written communication, charges prepaid, addressed to him at his address as it is shown upon the records of the corporation or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or telegraphed shall be deposited in the United States mail or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting; and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting.

 

Section 9.  Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

Section 10.  Waiver of Notice: Consent to Meeting. The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice or a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

Section 11.  Adjournment. A quorum of the Directors may adjourn to meet again at a set day and hour; and in the absence of a quorum a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

Section 12.  Action without Meeting. Any action required or permitted to be taken by the Board to Directors may be taken without a meeting, if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action, by written consent, shall have the same force and effect as a unanimous vote of such Directors.

 

Section 13.  Fees and Compensation. Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent, or employee or otherwise, and receiving compensation therefor.

 

Section 14.  Indemnification of Directors, Officers and Employees.

 

(a) When a person is sued, either alone or with others, because he is or was a Director, officer, or employee of the corporation, in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties or out of any alleged wrongful act against the corporation or by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist:

 

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(1)                                  The person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court; and

 

(2)                                  The court finds that his conduct fairly and equitable merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person, although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee, and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

(b) Notwithstanding the provisions of Subdivision (a) of this Section 14 the Board of Directors may authorize the corporation to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against a present or former Director, officer or employee of the corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person while a Director, officer or employee, or by the corporation or by both; provided, the Board of Directors determines m good faith that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Subdivision (b) does not apply to any action instituted or maintained in the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

(c) The provisions of this Section 14 shall apply to the estate, executor, administrator, heirs, legatees or devisees of such person.

 

(d) The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section 14, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers, or other persons, for expenses of a kind not subject to indemnification hereunder, provided the premiums on such combined policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

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ARTICLE IV

 

Officers

 

Section 1.  Officers. The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

Section 2.  Other Officers. The corporation may also have, in the discretion of the Board of Directors, a Chairman, of the Board, one or more Assistant Secretaries, one or more Assistant Treasurers and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

Section 3.  Removal and Resignation. Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board or except in case of an office chosen by the Board of Directors by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President, or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4.  Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in the bylaws for regular appointments to such office.

 

Section 5.  Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors, and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board to Directors.

 

Section 6.  President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board at all meetings of the Board of Directors. He shall be an ex officio member of all the standing committees, including the executive committee, if any, and shall have the general powers and duties of management usually vested in the office of the President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors.

 

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Section 7.  Vice President. In the absence or disability of the President, the Vice President in order of their rank as fixed by he Board of Directors, or if not ranked, the Vice President designated by the Board of Directors shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors.

 

Section 8.  Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office or such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special and if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office or at the office of the corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses; the number and classes of shares held by each, the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these by-laws or by law to be given, and he shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 9.  Treasurer. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V

 

Miscellaneous

 

Section 1. Record Date and Closing Stock Books. The Board of Directors may fix a time in the future as a record date for the deter-

 

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The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V

 

Miscellaneous

 

Section 1.  Record Date and Closing Stock Books. The Board of Directors may fix a time in the future as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any dividend or distribution, or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are such of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution, or allotment of rights, or to exercise the rights, as the case may be, not-withstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution, or allotment of rights, vests, or the effective date of any change, conversion or exchange of shares.

 

Section 2.  Inspection of Corporate Records. The share register or duplicate share register, the books of account, and minutes of proceedings of the shareholders, the Board of Directors and of the executive committee shall be open to inspection upon the written demand of any shareholder or the holder of a voting trust certificate, at any reasonable time, and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by the demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney, and shall include the right to make extracts. Demand of inspection other than at a shareholders’ meeting shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

Every Director shall have the right, at any reasonable time, to inspect the books, records, documents of every kind, and the physical properties of the corporation and of its subsidiary corporations, domestic

 

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pany, either domestic or foreign, as register of transfers, before issuance.

 

Section 4.  Transfer of Stock. The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney, or legal representative upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books to the corporation.

 

Section 5.  Lost Certificates. New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when, in the judgment of the Directors, it is proper to do so.

 

Section 6.  Corporate Seal. A corporation seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

Section 7.  Contract, Etc; How Executed. The Board of Directors may authorize any officer of officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute the membership application agreements on behalf of the corporation.

 

All checks, drafts or other orders for payment, of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board of Directors.

 

Section 8. Representation of Shares of Other Corporations. The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in

 

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any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 9.  Inspection of Bylaws. The corporation shall keep in its principal office for the transaction of business the original or a copy of these bylaws as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VI

 

Amendments

 

Section 1.  Power of Shareholders. New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written assent of such shareholders, except as otherwise provided by the Articles of Incorporation provided that the vote of written assent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

Section 2.  Power of Directors. Subject to the right of shareholders to adopt, amend or repeal bylaws, bylaws other than a bylaw or amendment thereof changing the authorized number of Directors may be adopted amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

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 EX-3.58(A) 116 a2202241zex-3_58a.htm EX-3.58(A)

Exhibit 3.58(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP SAN JOSE CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp San Jose Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp San Jose Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Fairfield, State of California, including the sports or business club commonly known as Silicon Valley Capital Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 


 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

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FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.58(B) 117 a2202241zex-3_58b.htm EX-3.58(B)

Exhibit 3.58(b)

 

BY-LAWS

 

OF

 

CLUBCORP SAN JOSE CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.59(A) 118 a2202241zex-3_59a.htm EX-3.59(A)

Exhibit 3.59(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP SHADOW RIDGE GOLF CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Shadow Ridge Golf Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Shadow Ridge Golf Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Shadowridge Country Club, in the City of Vista, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.59(B) 119 a2202241zex-3_59b.htm EX-3.59(B)

Exhibit 3.59(b)

 

BY-LAWS

 

OF

 

CLUBCORP SHADOW RIDGE GOLF CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.60(A) 120 a2202241zex-3_60a.htm EX-3.60(A)

Exhibit 3.60(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP SPRING VALLEY LAKE COUNTRY CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Spring Valley Lake Country Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Spring Valley Lake Country Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Spring Valley Lake Country Club, in the City of Victorville, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.60(B) 121 a2202241zex-3_60b.htm EX-3.60(B)

Exhibit 3.60(b)

 

BY-LAWS

 

OF

 

CLUBCORP SPRING VALLEY LAKE COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.61(A) 122 a2202241zex-3_61a.htm EX-3.61(A)

Exhibit 3.61(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP SYMPHONY TOWERS CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Symphony Towers Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Symphony Towers Club, Inc..

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)       to manage, lease and/or operate one or more sports or business clubs, in the City of San Diego, State of California, including the sports or business club commonly known as University Club Atop Symphony Towers (the “Business”);

 

(b)       to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)       to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)       to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)       to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 


 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)       The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)       The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

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FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.61(B) 123 a2202241zex-3_61b.htm EX-3.61(B)

Exhibit 3.61(b)

 

BY-LAWS

 

OF

 

CLUBCORP SYMPHONY TOWERS CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8


 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section. 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.62(A) 124 a2202241zex-3_62a.htm EX-3.62(A)

Exhibit 3.62(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP TEAL BEND GOLF CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Teal Bend Golf Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007. This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST. The name of the Corporation is ClubCorp Teal Bend Golf Club, Inc.

 

SECOND. The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                     to own that certain parcel of real property, together with all improvements located thereon, currently known as the Teal Bend Golf Club, in the City of Sacramento, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                    to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                     to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                    to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                     to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                     The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                    The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

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whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.62(B) 125 a2202241zex-3_62b.htm EX-3.62(B)

Exhibit 3.62(b)

 

BY-LAWS

 

OF

 

CLUBCORP TEAL BEND GOLF CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.63(A) 126 a2202241zex-3_63a.htm EX-3.63(A)

Exhibit 3.63(a)

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 05:30 PM 04/23/2010
FILED 05:02 PM 04/23/2010
SRV 100419515 - 4815550 FILE

 

 

 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP TTC, LLC

 

1.         The name of the limited liability company is: ClubCorp TTC, LLC

 

2.         The address of its registered office in the State of Delaware is: 2711 Centerville Road, Suite 400 in the City of Wilmington, Zip Code 19808. The name of its registered agent as such address is: Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of ClubCorp TTC, LLC, this 23rd day of April, 2010.

 

 

 

Authorized Person,

 

 

 

 

 

/s/ Amber Imhoff

 

Amber Imhoff

 


 EX-3.63(B) 127 a2202241zex-3_63b.htm EX-3.63(B)

Exhibit 3.63(b)

 

FIRST AMENDMENT
TO
LIMITED LIABILITY
COMPANY AGREEMENT
OF
CLUBCORP TTC, LLC

 

This First Amendment to Limited Liability Company Agreement (this “Amendment”) of ClubCorp TTC, LLC a limited liability company organized under the laws of the state of Delaware is entered into this 10th day of November, 2010 by and between ClubCorp USA, Inc., as the sole equity member (the “Member”). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Operating Agreement (defined below).

 

RECITALS

 

A.                              The Member entered into a Limited Liability Company Agreement dated as of April 23, 2010 (the “Operating Agreement”).

 

B.                                The Member desires to further amend the Operating Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

 

1.                                  Section 7(v) of the Operating Agreement is amended to read as follows:

 

(v)                                 to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware; and

 

2.                                  Section 19 of the Operating Agreement is amended to read as follows:

 

Section 19.                                      Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest

 


 

in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

3.                                       Except as modified herein, the Operating Agreement shall continue in full force and effect.

 

4.                                       This Amendment shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), and all rights and remedies being governed by said laws.

 

[The remainder of this page is intentionally blank.]

 

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IN WITNESS WHEREOF, the undersigned have executed this Amendment.

 

 

 

MEMBER:

 

 

 

CLUBCORP USA, INC.

 

 

 

By:

/s/ Ingrid Keiser

 

Name:

Ingrid Keiser

 

Title:

Secretary

 

Signature Page to the First Amendment to A&R LLC Agreement ClubCorp TTC LLC

 


 

LIMITED LIABILITY COMPANY AGREEMENT
OF
ClubCorp TTC, LLC

 

This Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp TTC, LLC (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on April 23, 2010, the Member caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.                                            Name.

 

The name of the limited liability company formed hereby is ClubCorp TTC, LLC.

 

Section 2.                                            Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.                                            Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.

 

Section 4.                                            Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.

 

Section 5.                                            Members.

 

(a)                                  The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

(b)                                 The Member may act by written consent.

 


 

Section 6.                                       Certificates.

 

The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.                                       Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(i)                                     to manage, lease and/or operate one or more sports or business clubs in the City of Lubbock, State of Texas, including the sports or business club commonly known as the Texas Tech Club (the “Business”);

 

(ii)                                  to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

(iii)                               to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(iv)                              to engage in any activities necessary to authorize, execute and deliver any other agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations;

 

(v)                                 to engage in such lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware that are incidental to or connected with the foregoing business or purposes or necessary to accomplish the foregoing; and

 

(vi)                              to engage in any other lawful business that may be engaged in by a limited liability company organized under the Act, as such business activities may be determined by the Board of Directors from time to time.

 

Section 8.                                            Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

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Section 9.                                       Management.

 

(a)                                  Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The initial Directors designated by the Member shall be as follows:

 

Eric L. Affeldt

Eric C. Resnick; and

Martin J. Newburger.

 

(b)                                 Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                                  Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)                                 Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                                  Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar

 

3


 

communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                                    Committees of Directors.

 

(i)                                The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                             In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                          Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)                                 Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)                                 Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                                     Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.                                      Officers.

 

(a)                                  Officers. The initial Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. The Board of Directors may also

 

4


 

choose one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers and agents as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers and agents of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company shall be filled by the Board. The initial Officers of the Company designated by the Member shall be as follows:

 

Eric L. Affeldt

President;

Curt McClellan

Treasurer; and

Ingrid Keiser

Secretary.

 

(b)                            President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                             Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)                            Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

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(e)                             Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                               Officers as Agents: The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)                            Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.                                      Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor the Special Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member, Special Member or Director of the Company.

 

Section 12.                                      Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.                                      Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Member shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and the Special Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the

 

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Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.                                 Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.                                 Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 16.                                 Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.                                 Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section .18.                              Exculpation and Indemnification.

 

(a)                                  Neither the Member nor the Special Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

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(b)                            To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                             To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)                            A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                             To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                               The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.                                 Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. Subject to Section 21, if the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor

 

8


 

Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.                                      Resignation.

 

The Member may resign at any time.

 

Section 21.                                      Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 22.                                 Dissolution.

 

(a)                             The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)                            Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                             Notwithstanding any other provision of this Agreement, the Member waives any right it might have to agree in writing to dissolve the Company upon the Bankruptcy of the Member, or the occurrence of an event that causes the Member to cease to be a member of the Company.

 

(d)                            In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly

 

9


 

manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(e)                                  The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.                                 Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 24.                                 Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 25.                                 Entire Agreement.

 

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

 

Section 26.                                 Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 27.                                 Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 28.                                 Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

10


 

Section 29.                                 Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 30.                                 Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 31.                                 Effectiveness.

 

Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as of the time of the filing of the Certificate of Formation with the Office of the Delaware Secretary of State on April 23, 2010.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Limited Liability Company Agreement as of the 23rd day of April, 2010.

 

 

MEMBER:

 

 

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Eric L. Affeldt

 

 

Name: Eric L. Affeldt

 

 

Title: President

 

12


 

SCHEDULE A

 

Definitions

 

A.                              Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Business” has the meaning set forth in Section 7(a)(i).

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on April 23, 2010, as amended or amended and restated from time to time.

 

“Company” means ClubCorp TTC, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting

 

A-1


 

securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as the initial member of the Company, and includes any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

B.                                Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.

 

$

100

 

100

%

 

 

c/o ClubCorp, Inc.

 

 

 

 

 

 

 

3030 LBJ Freeway, Suite 600

 

 

 

 

 

 

 

Dallas, TX 75234-7703

 

 

 

 

 

 

 

Attention:

Director of Finance and Chief Legal Officer

 

 

 

 

 

 

B-1


 EX-3.64(A) 128 a2202241zex-3_64a.htm EX-3.64(A)

Exhibit 3.64(a)

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

CLUBCORP TURKEY CREEK GOLF CLUB, INC.

 

This Amended and Restated Certificate of Incorporation of ClubCorp Turkey Creek Golf Club, Inc. (the “Corporation”) restates and amends the Corporation’s Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 18, 2007.  This Amended and Restated Certificate of Incorporation was duly approved and adopted by the Corporation’s Board of Directors and the sole stockholder of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law (the “DGCL”) and by the written consent of its sole stockholder in accordance with Section 228 of the DGCL.

 

FIRST.  The name of the Corporation is ClubCorp Turkey Creek Golf Club, Inc.

 

SECOND.  The address of the Corporation’s registered office in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Turkey Creek Golf Club, in the City of Lincoln, State of California (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 


 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the DGCL.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons

 

2


 

whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Reserved.

 

3


 

IN WITNESS WHEREOF, the undersigned has signed this Certificate this 10th day of November, 2010.

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

4


 EX-3.64(B) 129 a2202241zex-3_64b.htm EX-3.64(B)

Exhibit 3.64(b)

 

BY-LAWS

 

OF

 

CLUBCORP TURKEY CREEK GOLF CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

2


 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7


 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8


 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

10


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

12


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.65(A) 130 a2202241zex-3_65a.htm EX-3.65(A)

Exhibit 3.65(a)

 

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 04:02 PM 12/22/2006
FILED 12:13 PM 12/22/2006
SRV 061180161 - 2089598 FILE

 

CLUBCORP USA, INC.

 

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION

 

ClubCorp USA, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, does hereby certify:

 

1.         Article FOURTH of the Certificate of Incorporation of the corporation is amended to read as follows:

 

“The Corporation is authorized to issue Three Thousand (3,000) shares of capital stock in the aggregate. The capital stock of the Corporation shall consist of a single class, designated “Common Stock,” with a par value of $1.00 per share.”

 

2.         The amendment was duly proposed and declared advisable by the corporation’s Board of Directors and adopted by the corporation’s stockholders in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

3.         The amendment shall be effective upon filing.

 

[The remainder of this page is intentionally blank.]

 


 

IN WITNESS WHEREOF, the undersigned has signed this Certificate this 21st day of December, 2006.

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By

/s/ Thomas T. Henslee

 

 

Thomas T. Henslee, Secretary

 

2


 

STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 01/22/1999
991030293 - 2089598

 

 

 

CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
CLUB CORPORATION OF AMERICA

 

We the undersigned as President and Secretary of CLUB CORPORATION OF AMERICA do hereby certify:

 

That the board of Directors of said corporation at a meeting duly convened and held on the 4th day of January, 1999, adopted a resolution to amend the original Articles of Incorporation, as follows:

 

Article I shall be amended to read as follows:

 

The name of this corporation is: ClubCorp USA, Inc.

 

The number of shares of the corporation outstanding and entitled to vote on such amendment to the Articles of Incorporation is 1,000; that the said change of name and amendment to the Articles of Incorporation has been consented to and approved by a majority vote of the stockholders holding at least a majority of stock outstanding and entitled to vote thereon at a special meeting of Shareholders duly convened and held on January 4, 1999 pursuant to section 242.

 

 

Dated: January 4, 1999.

 

 

 

CLUB CORPORATION OF AMERICA

 

 

 

 

 

By:

/s/ James M. Hinckley

 

 

James M. Hinckley, President

 

 

 

 

By:

/s/ Thomas T. Henslee

 

 

Thomas T. Henslee, Secretary

 


 

 

 

10:01 am

 

 

FILED

 

CERTIFICATE OF INCORPORATION

APR 25 [Illegible]

 

OF

[Illegible]

 

Club Corporation of America

 

 

 

/s/ [Illegible]

 

 

[Illegible]

 

FIRST; The name of this Corporation is Club Corporation of America

 

SECOND: Its Registered Office in the State of Delaware is to be located at 1209 Orange Street, in the city of Wilmington, County of New Castle ZIP CODE 19801. The Registered Agent in charge thereof is Corporation Trust Company (The)

 

 

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

FOURTH: The amount of the total authorized capital stock of this corporation is One Thousand Dollars ($1,000.00) divided into 1,000 shares, of One Dollars ($l.00) each.

 

FIFTH: The Name and mailing address of the incorporator are as follows:

 

 

NAME

 

MAILING ADDRESS

 

ZIP CODE

 

 

 

 

 

 

 

 

 

 

 

Murry E. Page

 

J4651 Dallas Parkway, Suite 700
Dallas, Texas

 

75240

 

 

 

I, THE UNDERSIGNED, for the purpose of forming a Corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this 24th day of January, A.D. 1986.

 

 

 

/s/ Murry E. Page

 

Murry E. Page

 


 EX-3.65(B) 131 a2202241zex-3_65b.htm EX-3.65(B)

Exhibit 3.65(b)

 

BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
CLUB CORPORATION OF AMERICA

 

ARTICLE I

 

OFFICES

 

Section 1. Principal Office. The corporation will maintain offices for the transaction of business of the corporation at Four Metro Square, 2711 LBJ Freeway, Dallas, Texas, 752334.

 

Section 2. Other Offices. Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

ARTICLE II

 

MEETINGS OF SHAREHOLDERS

 

Section 1. Place of Meetings. All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or (ii) consented to by the written consent of all shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

Section 2. Annual Meetings. The annual meeting of shareholders shall be on the 3rd Tuesday of April in each year at 10:00 a.m.; provided, however, that should said day fall upon a legal holiday, then any such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such meetings, Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the power of the shareholders.

 

Section 3. Special Meetings. Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a

 

1


 

written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

Section 4. Notice of Meeting. Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation; (b) a proposal to merge or consolidate with another corporation, domestic or foreign; (c) a proposal to reduce the stated capital of the corporation; (d) a proposal to amend the Articles of Incorporation; (e) a proposal to wind up and dissolve the corporation; or (f) a proposal to adopt a plan of distribution of shares, securities, or any other consideration (other than money) in the process of winding up.

 

Section 5. Consent of Absentees. The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

Section 6. Quorum. The presence in person or by proxy of persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

2


 

Section 7. Voting. Unless a record date for voting purposes be fixed, as hereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be non-cumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

Section 8. Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

Section 9. Adjourned Meetings and Notice Thereof. Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

Section 10. Action Without Meeting. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting and filed with the Secretary of the corporation; provided, however, a meeting shall be held for dissolution, transfer of all or substantially all of the assets of the corporation, or for merger or consolidation of the corporation with other corporations, if same is required under applicable law.

 

3


 

ARTICLE III

 

DIRECTORS

 

Section 1. Powers. Subject to limitations imposed by law or by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation, shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

Section 2. Number of Directors. The authorized number of Directors of the corporation shall be not less than one nor more than twenty until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

Section 3. Election and Term of Office. The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

Section 4. Vacancies. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect

 

4


 

a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of his term of office.

 

Section 5. Quorum. A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

Section 6. Place of Directors’ Meetings. Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

Section 7. Regular Meetings. Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

Section 8. Special Meetings. Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each Director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or telegraphed shall be deposited in the United States mail or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting.

 

Section 9. Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

5


 

Section 10. Waiver of Notice: Consent to Meeting. The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

Section 11. Adjournment. A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

Section 12. Action without Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

Section 13. Fees and Compensation. Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

Section 14. Indemnification of Directors, Officers and Employees.

 

A. In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court; and (ii) the court finds that his conduct fairly and equitable merits such indemnity.

 

6


 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

B. Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a present or former Director, officer or employee of the corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

C. The provisions of this Section shall apply to the estate, executor, administrator, heirs, legatees or devisees of any such present or former Director, officer or employee of the corporation.

 

D. The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to indemnification hereunder, provided the premiums on such combined

 

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policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV

 

OFFICERS

 

Section 1. Officers. The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

Section 2. Other Officers. The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

Section 3. Removal and Resignation. Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

Section 5. Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

Section 6. President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject

 

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to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, at all meetings of the Board of Directors. He shall be an ex officio member of all the standing committees, including the Executive Committee, if any, and shall have the general powers and duties of management usually vested in the office of the President of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors.

 

Section 7. Vice President. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors.

 

Section 8. Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of the corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 9. Treasurer. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be

 

9


 

classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V

 

MISCELLANEOUS

 

Section 1. Record Date and Closing Stock Books. The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

Section 2. Inspection of Corporate Records. The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to

 

10


 

make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

Every Director shall have the right at any reasonable time to inspect the books, records, documents of every kind, and the physical properties of the corporation and of its subsidiary corporations, domestic or foreign.

 

Section 3. Certificates for Shares. A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

Section 4. Transfer of Stock. The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

Section 5. Lost Certificates. New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

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Section 6. Corporate Seal. A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

Section 7. Contracts - Execution of Documents. The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

 

All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

Section 8. Representation of Shares of Other Corporations. The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 9. Inspection of Bylaws. The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VI

 

AMENDMENTS

 

Section 1. Power of Shareholders. New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

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Section 2. Power of Directors. Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

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 EX-3.66(A) 132 a2202241zex-3_66a.htm EX-3.66(A)

Exhibit 3.66(a)

 

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 05:51 PM 07/23/2010
FILED 05:26 PM 07/23/2010
SRV 100769755 - 4852033 FILE

 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP WILLOW CREEK, LLC

 

1.         The name of the limited liability company is: ClubCorp Willow Creek, LLC

 

2.         The address of its registered office in the State of Delaware is: 2711 Centerville Road, Suite 400 in the City of Wilmington, Zip Code 19808. The name of its registered agent as such address is: Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of ClubCorp Willow Creek, LLC, this 23rd day of July, 2010.

 

 

 

Authorized Person,

 

 

 

 

 

/s/ Amber Imhoff

 

Amber Imhoff

 


 EX-3.66(B) 133 a2202241zex-3_66b.htm EX-3.66(B)

Exhibit 3.66(b)

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

CLUBCORP WILLOW CREEK, LLC

 

This Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Willow Creek, LLC (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on July 23, 2010, Amber Imhoff caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.       Name.

 

The name of the limited liability company formed hereby is ClubCorp Willow Creek, LLC.

 

Section 2.       Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.       Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 4.       Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.       Members.

 

(a)        The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 


 

(b)       The Member may act by written consent.

 

Section 6.       Certificates.

 

Amber Imhoff was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by her in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, her powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.       Purposes.

 

The purpose to be conducted or promoted by the Company is to engage in any lawful business that may be engaged in by a limited liability company organized under the Act.

 

Section 8.       Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.      Management.

 

(a)        Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

Eric Resnick; and

Martin Newburger.

 

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(b)       Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)        Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)       Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)        Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)        Committees of Directors.

 

(i)                        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                     In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

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(iii)                  Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)       Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)       Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)         Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.     Officers.

 

(a)        Officers. The initial Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are as follows:

 

 

Eric L. Affeldt

President;

 

Curt D. McClellan

Treasurer; and

 

Ingrid J. Keiser

Secretary.

 

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(b)       President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)        Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)       Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)        Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)        Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this

 

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Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)       Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.     Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 12.     Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.     Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.     Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.     Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

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Section 16.     Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.     Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.     Exculpation and Indemnification.

 

(a)        Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)       To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)        To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim,

 

7


 

demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)       A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)        To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)        The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.     Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.     Resignation.

 

The Member may resign at any time.

 

8

 

Section 21.     Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 22.     Dissolution.

 

(a)        The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)       Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)        In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)       The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.     Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or

 

9


 

termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the Member in the Company is personal property.

 

Section 24.     Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.     Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 26.     Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 27.     Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 28.     Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 29.     Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 30.     Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

10


 

Section 31.     Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

 

MEMBER:

 

 

 

 

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

 

Name:

Ingrid J. Keiser

 

 

 

Title:

Secretary

 

Signature Page to the LLC Agreement — ClubCorp Willow Creek, LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on July 23, 2010, as amended or amended and restated from time to time.

 

“Company” means ClubCorp Willow Creek, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as a member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.       Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention:  Director of Finance and Chief Legal Officer

 

$100

 

100%

 

 

B-1


 EX-3.67(A) 134 a2202241zex-3_67a.htm EX-3.67(A)

Exhibit 3.67(a)

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 05:50 PM 07/23/2010
FILED 05:16 PM 07/23/2010
SRV 100769700 - 4852019 FILE

 

CERTIFICATE OF FORMATION

 

OF

 

CLUBCORP WIND WATCH, LLC

 

1. The name of the limited liability company is: ClubCorp Wind Watch, LLC

 

2. The address of its registered office in the State of Delaware is: 2711 Centerville Road, Suite 400 in the City of Wilmington, Zip Code 19808. The name of its registered agent as such address is: Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of ClubCorp Wind Watch, LLC, this 23rd day of July, 2010.

 

 

Authorized Person,

 

 

 

/s/ Amber Imhoff

 

Amber Imhoff

 


 EX-3.67(B) 135 a2202241zex-3_67b.htm EX-3.67(B)

Exhibit 3.67(b)

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

CLUBCORP WIND WATCH, LLC

 

This Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of ClubCorp Wind Watch, LLC (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on July 23, 2010, Amber Imhoff caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.       Name.

 

The name of the limited liability company formed hereby is ClubCorp Wind Watch, LLC.

 

Section 2.       Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LB J Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.       Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 4.       Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.       Members.

 

(a)        The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 


 

(b)       The Member may act by written consent.

 

Section 6.       Certificates.

 

Amber Imhoff was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by her in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, her powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.       Purposes.

 

The purpose to be conducted or promoted by the Company is to engage in any lawful business that may be engaged in by a limited liability company organized under the Act.

 

Section 8.       Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.       Management.

 

(a)        Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

Eric Resnick; and

Martin Newburger.

 

2


 

(b)       Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)        Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)       Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)        Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)        Committees of Directors.

 

(i)      The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)      In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

3


 

(iii)    Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)     Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)      Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)      Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.     Officers.

 

(a)        Officers. The initial Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

President;

Curt D. McClellan

Treasurer; and

Ingrid J. Keiser

Secretary.

 

4


 

(b)       President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)        Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)       Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as maybe prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)        Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)        Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this

 

5


 

Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)       Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.     Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 12.     Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.     Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.     Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.     Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

6


 

Section 16.     Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.     Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.     Exculpation and Indemnification.

 

(a)        Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)       To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)        To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim,

 

7


 

demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)       A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)        To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)        The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.     Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.     Resignation.

 

The Member may resign at any time.

 

8

 

Section 21.     Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 22.     Dissolution.

 

(a)        The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)       Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)        In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)       The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.     Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or

 

9


 

termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the Member in the Company is personal property.

 

Section 24.     Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.     Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 26.     Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 27.     Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 28.     Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 29.     Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 30.     Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

10


 

Section 31.     Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

 

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

Signature Page to the LLC Agreement — ClubCorp Wind Watch, LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on July 23, 2010, as amended or amended and restated from time to time.

 

“Company” means ClubCorp Wind Watch, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as a member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703

 

$100

 

100%

 

 

 

Attention:

Director of Finance and
Chief Legal Officer

 

 

 

 

 

 

B-1


 EX-3.68(A) 136 a2202241zex-3_68a.htm EX-3.68(A)

Exhibit 3.68(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

COLUMBIA CAPITAL CITY CLUB CORP.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed with the Secretary of State of the State of South Carolina on March 26, 1992 pursuant to Section 33-10-107 of the South Carolina Business Corporation Act of 1988, hereby execute this Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST.  The name of the corporation is Columbia Capital City Club Corp. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of South Carolina is 5000 Thurmond Mall Boulevard, Columbia, 29201.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Columbia, State of South Carolina, including the sports or business club commonly known as Capital City Club — Columbia (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the South Carolina Business Corporation Act of 1988.

 

1


 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved.]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.  Directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present.  Shareholders do not have a right to cumulate their votes for directors.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of South Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the South Carolina Business Corporation Act of 1988 as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of South Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated

 

2


 

Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.

 

*  *  *

 

3


 

IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

4


 

CERTIFICATE ACCOMPANYING

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation.  Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.           On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.           The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.           The amendments were adopted by the shareholders.  On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock.  The number cast for the amendment was sufficient for approval by that voting group.

 

 Dated: November 10th, 2010.

COLUMBIA CAPITAL CITY CLUB CORP.

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

5


 EX-3.68(B) 137 a2202241zex-3_68b.htm EX-3.68(B)

Exhibit 3.68(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

COLUMBIA CAPITAL CITY CLUB CORP.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.    Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of South Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.    Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by (i) the Board of Directors; or (ii) by the shareholders constituting at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the special meeting provided that such shareholders sign, date, and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose for which it is to be held. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.    Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.    Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a

 


 

new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.    Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.    Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.    Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a

 

2


 

majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.    Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.    List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, in the timeframe set forth below, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting on the date on which notice of the meeting is given (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only

 

3


 

evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Unanimous Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to nonvoting shareholders, the corporation shall give the nonvoting shareholders written notice of the proposed action at least ten (10) days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent

 

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with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.    Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.    Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3.    Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of South Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.    Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of South Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least two (2) days before the special meeting.

 

Section 2.5.    Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.    Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.    Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.    Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.    Committees. The Board of Directors may designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.    Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.        Appointing Attorneys and Agents: Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.        Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.        Waiver of Notice of Meetings of Shareholders, Directors and Committees. A person entitled to notice of a meeting may waive any notice required by applicable law, the articles of incorporation, or these by-laws before or after the date and time stated in the notice of the meeting if a written waiver signed by the person entitled to the notice of the meeting is delivered to the corporation for filing in the minutes or corporate records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.        Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.69(A) 138 a2202241zex-3_69a.htm EX-3.69(A)

Exhibit 3.69(a)

 

CERTIFICATE ACCOMPANYING

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

COLUMBIA TOWER CLUB, INC.

 

Pursuant to the provisions of RCW 23B.10.070, the Amended and Restated Articles of Incorporation of Columbia Tower Club, Inc., a Washington corporation, are hereby submitted for filing.

 

1.             The name of record of the corporation is Columbia Tower Club, Inc. (the “Corporation”).

 

2.             The Articles of Incorporation of the Corporation are amended and restated in their entirety and replaced with the Amended and Restated Articles of Incorporation (the “Amended and Restated Articles”) in the form attached hereto.

 

3.             The Amended and Restated Articles were approved by the Board of Directors and shareholders of the Corporation on November 9, 2010, in accordance with the provisions of RCW 23B.10.030 and 23B.10.040.

 

The undersigned certifies that he is the Secretary of the Corporation and has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

COLUMBIA TOWER CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

COLUMBIA TOWER CLUB, INC.

 

Pursuant to RCW 23B.10.070 of the Washington Business Corporation Act, the following Amended and Restated Articles of Incorporation of Columbia Tower Club, Inc. are hereby submitted for filing:

 

FIRST.                    The name of the corporation is Columbia Tower Club, Inc. (the “Corporation”).

 

SECOND.               The address of the Corporation’s statutory agent in the State of Washington is 6500 Harbour Heights Parkway, Suite 400, Mukilteo, Washington  98275.  The name of its statutory agent at such address is Corporation Service Company.

 

THIRD.                  [Reserved.]

 

FOURTH.              [Reserved.]

 

FIFTH.                   The character of business that the Corporation intends to conduct in the State of Washington shall be the following purposes:

 

(a) to manage. Lease and/or operate one or more sports or business clubs, in the State of Washington, including the sports or business club currently known as the Columbia Tower Club, in the City of Seattle, State of Washington (the “Business”);

 

(b) to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c) to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d) to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

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(e) to engage in any lawful activities and to exercise such powers permitted to corporations under the Washington Business Corporation Act.

 

SIXTH.                   The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

SEVENTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

EIGHTH.

 

(a) The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b) The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

NINTH.                  In furtherance and not in limitation of the powers conferred by the laws of the State of Washington, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

TENTH.                 The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

ELEVENTH.  [Reserved.]

 

TWELFTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Washington Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

THIRTEENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Washington at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these

 

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Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

FOURTEENTH.  [Reserved.]

 

FIFTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

SIXTEENTH.        Unless the By-laws of the Corporation provide otherwise and the statutory agent expressly consents thereto in writing, all records required pursuant to the Washington Business Corporation Act to be kept by the Corporation or its agent shall be kept by the Corporation at the known place of business of the Corporation.

 

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Dated:  November 9, 2010

 

 

COLUMBIA TOWER CLUB, INC.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

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 EX-3.69(B) 139 a2202241zex-3_69b.htm EX-3.69(B)

Exhibit 3.69(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

COLUMBIA TOWER CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Washington, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. Any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if either (i) the action is taken by all shareholders entitled to vote on the action; or (ii) the action is taken by shareholders holding of record or otherwise entitled to vote in the aggregate not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and at the time the action is taken the corporation is not a public company and is authorized to take such action under RCW 23B.07.040 by a general or limited authorization contained in its articles of incorporation. The taking of action by shareholders without a meeting or vote must be evidenced by one or more consents, each in the form of a record describing the action taken, executed by shareholders holding of record or otherwise entitled to vote in the aggregate not less than the minimum number of votes that would be necessary to authorize or take such action and delivered to the corporation by delivery to its registered office in the State of Washington, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Notice of the taking of action by shareholders without a meeting by less than unanimous written consent of all shareholders entitled to vote on the action shall be given, before the date on which the action becomes effective, to those shareholders entitled to vote on the action who have not consented and if the Act would otherwise require that notice of a meeting of shareholders to consider the action be given to nonvoting shareholders, to all nonvoting shareholders of the corporation,.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of

 

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the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Washington and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Washington whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnity and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.70(A) 140 a2202241zex-3_70a.htm EX-3.70(A)

Exhibit 3.70(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

COUNTRYSIDE COUNTRY CLUB, INC.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Countryside Country Club, Inc. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Countryside Country Club, Inc.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on August 16, 1977.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The Articles of Incorporation of the Corporation are amended and restated to read in their entirety as follows:

 

ARTICLE I

 

The name of the Corporation is Countryside Country Club, Inc.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

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(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Countryside Country Club, in the City of Clearwater, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

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ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition

 

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seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

 

     Ingrid Keiser, Secretary

 

 

Signature Page to the A&R Articles of Incorporation – Countryside Country Club, Inc.

 


 EX-3.70(B) 141 a2202241zex-3_70b.htm EX-3.70(B)

Exhibit 3.70(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

COUNTRYSIDE COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Florida and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

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Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.71(A) 142 a2202241zex-3_71a.htm EX-3.71(A)

Exhibit 3.71(a)

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 04:35 PM 12/13/2006
FILED 04:33 PM 12/13/2006
SRV 061142116 - 4267134 FILE

 

 

CERTIFICATE OF FORMATION

 

OF

 

CURRITUCK GOLF, LLC

 

ARTICLE 1. NAME

 

The name of the limited liability company is Currituck Golf, LLC.

 

ARTICLE 2. REGISTERED OFFICE AND
REGISTERED AGENT

 

The address of the registered office of this limited liability company in Delaware is 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, State of Delaware 19808, and the name of its registered agent at such address is Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 13th day of December, 2006.

 

 

 

 

           /s/ Lance W. Bass

 

 

Lance W. Bass

 


 EX-3.71(B) 143 a2202241zex-3_71b.htm EX-3.71(B)

Exhibit 3.71(b)

 

SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CURRITUCK GOLF, LLC

 

This Second Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of Currituck Golf, LLC (the “Company”), is entered into by CCA Mezzanine Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on December 13, 2006, Lance W. Bass executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Limited Liability Company Agreement of Currituck Golf, LLC, dated as of December 26, 2006 entered into by CCA Mezzanine Holdco, LLC as the sole member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1. Name.

 

The name of the limited liability company continued hereby is Currituck Golf, LLC.

 

Section 2. Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3. Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4. Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5. Members.

 

(a) The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

(b) The Member may act by written consent.

 

Section 6. Certificates.

 

Lance W. Bass was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7. Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a) to manage, lease and/or operate one or more sports or business clubs, in the Corolla, State of North Carolina, including the sports or business club commonly known as The Currituck Club (the “Business”);

 

(b) to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

(c) to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d) to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

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filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e) to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8. Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9. Management.

 

(a) Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b) Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c) Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

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or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e) Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f) Committees of Directors.

 

(i)                        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                     In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                  Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g) Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h) Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i) Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the

 

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Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10. Reserved.

 

Section 11. Officers.

 

(a) Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers and agents of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b) President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c) Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d) Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in

 

5


 

order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e) Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f) Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g) Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12. Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13. Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14. Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member

 

6


 

and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15. Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16. Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17. Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18. Reserved.

 

Section 19. Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20. Exculpation and Indemnification.

 

(a) Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good

 

7


 

faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c) To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f) The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21. Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company

 

8


 

pursuant to this Section 21, ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22. Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23. Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24. Dissolution.

 

(a) The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or

 

9


 

designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b) Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d) The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25. Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26. Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27. Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

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Section 28. Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29. Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30. Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31. Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member. Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 32. Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 33. Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall

 

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control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in Currituck Golf, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CCA MEZZANINE HOLDCO, LLC

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:  Ingrid Keiser

 

 

Title:  Secretary

 

Signature Page to the Second A&R LLC Agreement – Currituck Golf, LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Second Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Basic Documents” means this Agreement, the Management Agreement, the Loan Documents and all documents and certificates contemplated thereby or delivered in connection therewith.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on December 13, 2006, as amended or amended and restated from time to time.

 

“Company” means Currituck Golf, LLC, a Delaware limited liability company.

 

A-1


 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means CCA Mezzanine Holdco, LLC, a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

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SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Membership
Interest

 

CCA Mezzanine Holdco, LLC

 

CCA Mezzanine Holdco, LLC
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.                          Eric L. Affeldt

2.                          Eric C. Resnick

3.                          Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

Eric L. Affeldt

 

President

Curt McClellan

 

Treasurer

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR CURRITUCK GOLF, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-1

100 % of Interests

 

Currituck Golf, LLC, a Delaware limited liability company (the “Company”), hereby certifies that CCA Mezzanine Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER     , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in Currituck Golf, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                ] as of the date set forth below.

 

Dated:

 

 

 

 

 

 

Name:

 

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF CURRITUCK GOLF, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                    (print or typewrite name of Transferee),                                            (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                        (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                     , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

(Transferor)

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

E-2


 EX-3.72(A) 144 a2202241zex-3_72a.htm EX-3.72(A)

Exhibit 3.72(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

DALLAS TOWER CLUB, INC.

 

Dallas Tower Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Dallas Tower Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF DALLAS TOWER CLUB, INC.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Dallas Tower Club, Inc.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to hold the liquor license and manage or operate the liquor concessions for one or more sports or business clubs, in the City of Dallas, State of Texas, including the sports or business club commonly known as the Tower Club of Dallas (the “Business”);

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

3


 

ARTICLE XIV

 

Reserved.

 

10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Dallas Tower Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

 

DALLAS TOWER CLUB, INC.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

DALLAS TOWER CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Dallas Tower Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to hold the liquor license and manage or operate the liquor concessions for one or more sports or business clubs, in the City of Dallas, State of Texas, including the sports or business club commonly known as the Tower Club of Dallas (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

2


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

3


 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

4


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

5


 EX-3.72(B) 145 a2202241zex-3_72b.htm EX-3.72(B)

Exhibit 3.72(b)

 

AMENDED AND RESTATED BYLAWS
OF
DALLAS TOWER CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.73(A) 146 a2202241zex-3_73a.htm EX-3.73(A)

Exhibit 3.73(a)

 

 

RECEIVED
SECRETARY OF STATE
2010 NOV 12 PM 3: 51
CLIENT SERVICE CENTER

 

 

Prescribed by J. Kenneth Blackwell

Expedite this Form: (Select One)

[Seal of Ohio Secretary of State]

Ohio Secretary of State
Central Ohio: (614) 466-3910
Toll Free: 1-877-SOS-FILE (1-877-767-3453)

 

Mail Form to one of the Following:

 

o Yes

PO Box 1390
Columbus, OH 43216

www.state.oh.us/sos

*** Requires an additional fee of $100***

e-mail: busserv@sos.state.oh.us

o No

PO Box1028
Columbus, OH 43216

 

Certificate of Amendment by
Shareholders or Members
(Domestic)
Filing Fee $50.00

 

(CHECK ONLY ONE (1) BOX)

 

 

 

 

(1)

Domestic for Profit

PLEASE READ INSTRUCTIONS

(2)

Domestic Non-Profit

 

 

 

 

 

 

 

 

 

 

x

Amended
(122-AMAP)

o

Amendment
(125-AMDS)

 

o

Amended
(126-AMAN)

o

Amendment
(128-AMD)

 

Complete the general information in this section for the box checked above.

 

 

Name of Corporation

Dayton Racquet Club, Inc.

 

 

Charter Number

392974

 

 

Name of Officer

Ingrid Keiser

 

 

Title

Secretary

 

x Please check if additional provisions attached.

 

The above named Ohio corporation, does hereby certify that:

 

 

o A meeting of the

o shareholders

o directors (non-profit amended articles only)

 

o members was duly called and held on

 

 

 

(Date)

 

 

at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative vote was cast which entitled them to exercise                     % as the voting power of the corporation.

 

x In a writing signed by all of the

x shareholders

o directors (non-profit amended articles only)

 

 

 

o members who would be entitled to the notice of a meeting or such other proportion not less than a majority as the articles of regulations or bylaws permit.

 

Clause applies if amended box is checked.

 

Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede and take the place of the existing articles of incorporation and all amendments thereto.

 

541

 

1


 

All of the following information must be completed if an amended box is checked. if an amendment box is checked, complete the areas that apply.

 

FIRST:

The name of the corporation is:

Dayton Recquet Club, Inc.

 

 

SECOND:

The place in the State of Ohio where its principal office is located is in the City of:

 

 

 

Dayton

 

Montgomery

 

 

(city, village or township)

 

(county)

 

 

 

THIRD:

The purposes of the corporation are as follows:

 

 

 

See Exhibit A attached.

 

 

FOURTH:

The number of shares which the corporation is authorized to have outstanding is:

1,000 Common

 

(Does not apply to box (2))

$100 par value per share

 

REQUIRED

Must be authenticated
(signed) by an authorized
representative

(See Instructions)

 

/s/ Ingrid Keiser

 

November 10 2010

Authorized Representative

 

Date

 

 

Ingrid Keiser

 

(Print Name)

 

 

 

 

Secretary

 

 

 

 

 

 

 

 

 

 

Authorized Representative

 

Date

 

 

 

 

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

2


 

EXHIBIT A

TO

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

DAYTON RACQUET CLUB, INC.

 

THIRD, Dayton Racquet Club, Inc. (the “Corporation”) has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Cleveland, State of Ohio, including the sports or business club commonly known as Dayton Racquet Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the General Corporation Law of the State of Ohio.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

1


 

SIXTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

SEVENTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Ohio, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

EIGHTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH. The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

TENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Ohio, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Ohio at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH. Reserved.

 

2


 

THIRTEENTH. The Corporation, shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors of the Corporation and the sole shareholder of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 1701.71 of Ohio General Corporation Law. These Amended and Restated Articles of Incorporation supersede the existing Articles of Incorporation of the Corporation and all amendments thereto.

 

3


 

IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

DAYTON RACQUET CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 


 EX-3.73(B) 147 a2202241zex-3_73b.htm EX-3.73(B)

Exhibit 3.73(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

DAYTON RACQUET CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Ohio, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

2


 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Ohio, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Ohio and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Ohio whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.74(A) 148 a2202241zex-3_74a.htm EX-3.74(A)

Exhibit 3.74(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

DEBARY MANAGEMENT CORP.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), DeBary Management Corp. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is DeBary Management Corp.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on March 30, 1998.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The articles of incorporation of the Corporation are amended and restated to read in their entirety as follows:

 

ARTICLE I

 

The name of the Corporation is DeBary Management Corp.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

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(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the DeBary Golf & Country Club, in the City of DeBary, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

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ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies (including the Independent Director, if the Corporation is required to have an Independent Director at such time, or if there is more than one, all of the Independent

 

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Directors), institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation – Debary Management Corp.

 


 EX-3.74(B) 149 a2202241zex-3_74b.htm EX-3.74(B)

Exhibit 3.74(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

DEBARY MANAGEMENT CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of

 

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the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Florida and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

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Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.75(A) 150 a2202241zex-3_75a.htm EX-3.75(A)

Exhibit 3.75(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

DIAMANTE’ GOLF CLUB MANAGEMENT, INC.

 

Diamante’ Golf Club Management, Inc. (the “Corporation”), for the purposes of amending and restating its Articles of Incorporation originally filed with the Secretary of State of the State of Arkansas on January 26, 1994, pursuant to Ark. Code Ann. § 4-27-1007 hereby executes these Amended and Restated Articles of Incorporation and does certify as follows:

 

FIRST.  The name of the Corporation is Diamante’ Golf Club Management, Inc.

 

SECOND.  The address of the Corporation’s registered office in the State of Arkansas is 101 S. Spring Street, Suite 220 in the City of Little Rock, County of Pulaski, 72201.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as Diamante’ Country Club, in the City of Hot Springs Village, State of Arkansas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Arkansas Business Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 


 

FIFTH.  [Reserved].

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Arkansas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Arkansas Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Arkansas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved.]

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or

 

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insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

DIAMANTE’ GOLF CLUB MANAGEMENT, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

 

 

Name: Ingrid Keiser

 

Its: Secretary

 


 EX-3.75(B) 151 a2202241zex-3_75b.htm EX-3.75(B)

Exhibit 3.75(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

DIAMANTE GOLF CLUB MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings.  If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Arkansas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings.  Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings.  Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments.  Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum.  Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization.  Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies.  Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record.  In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote.  The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders.  Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Arkansas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election.  The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings.  The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications.  The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation;  Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings.  Regular meetings of the Board of Directors may be held at such places within or without the State of Arkansas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings.  Special meetings of the Board of Directors may be held at any time or place within or without the State of Arkansas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted.  Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action.  At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization.  Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors.  Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees.  The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules.  Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.  The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers.  The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities.  Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates.  Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates.  The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification.  The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses.  The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims.  If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights.  The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources.  The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal.  Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses.  This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year.  The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal.  The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice.  Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees.  Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records.  Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws.  These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.76(A) 152 a2202241zex-3_76a.htm EX-3.76(A)

Exhibit 3.76(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

DIAMANTE’ GOLF CLUB PARTNERS, INC.

 

Diamante’ Golf Club Partners, Inc. (the “Corporation”), for the purposes of amending and restating its Articles of Incorporation originally filed with the Secretary of State of the State of Arkansas on January 26, 1994, pursuant to Ark. Code Ann. § 4-27-1007 hereby executes these Amended and Restated Articles of Incorporation and does certify as follows:

 

FIRST.  The name of the Corporation is Diamante’ Golf Club Partners, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of Arkansas is 101 S. Spring Street, Suite 220 in the City of Little Rock, County of Pulaski, 72201.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own ownership interests and act as a member in Diamante’, a Private Membership Golf Club, LLC (“the Property”) and to operate or cause the Diamante Country Club to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Arkansas Business Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

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FIFTH.  [Reserved.]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Arkansas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Arkansas Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Arkansas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or

 

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insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

DIAMANTE’ GOLF CLUB PARTNERS, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 


 EX-3.76(B) 153 a2202241zex-3_76b.htm EX-3.76(B)

Exhibit 3.76(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

DIAMANTE GOLF CLUB PARTNERS, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Arkansas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Arkansas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Arkansas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Arkansas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.77(A) 154 a2202241zex-3_77a.htm EX-3.77(A)

Exhibit 3.77(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

DIAMOND RUN CLUB, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed under the name Diamond Run Club, Inc. with the Secretary of the Commonwealth of Pennsylvania on November 17, 1998, pursuant to the Business Corporation Law of the Commonwealth of Pennsylvania, hereby execute these Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST.  The name of the corporation is Diamond Run Club, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the Commonwealth of Pennsylvania is 2704 Commerce Drive, Harrisburg, 17110.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as Diamond Run Golf Club, in the City of Sewickley, Commonwealth of Pennsylvania (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the Commonwealth of Pennsylvania.

 

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FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Pennsylvania, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.   The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Law of the Commonwealth of Pennsylvania, as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

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TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Pennsylvania at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation.  Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.             On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.             The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.             The amendments were adopted by the shareholders.  On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock.  The number cast for the amendment was sufficient for approval by that voting group.

 

Dated: November 10, 2010.

DIAMOND RUN CLUB, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

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EXHIBIT A TO CERTIFICATE

 

TEXT OF RESTATED ARTICLES

 

(to be attached)

 

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 EX-3.77(B) 155 a2202241zex-3_77b.htm EX-3.77(B)

Exhibit 3.77(b)

 

BYLAWS OF

 

DIAMOND RUN CLUB, INC.

 

ARTICLE I.

 

OFFICES

 

A.            Principal Office

 

The principal office of the corporation is located at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

B.            Other Offices

 

Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

C.            Registered Office

 

The Registered office of the corporation is located at 319 Market Street, Harrisburg, Pennsylvania 17101-2207.

 

D.            Registered Agent

 

The name of the registered agent of the corporation at such address is Corporation Service Company.

 

ARTICLE II.

 

SHAREHOLDERS MEETINGS

 

A.            Place of Meetings

 

All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or pursuant to authority hereinafter granted to the Board, or (ii) by the written consent of all persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of the residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

B.            Time of Annual Meeting — Business Transacted

 

The annual meeting shall be held on the date and the time fixed, from time to time, by the directors, provided that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted that is within the powers of the shareholders. A special meeting shall be held on the date and at the time fixed by the directors.

 

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C.            Special Meetings

 

Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

D.            Notice of Meetings

 

Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of share, securities, or any other consideration (other than money) in the process of winding up.

 

E.             Consent of Absentees

 

The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though it had been held at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

F.             Quorum

 

The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting constitutes a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

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G.            Voting

 

Unless a record date for voting purposes be fixed, as thereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

H.            Proxies

 

Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

I.              Adjourned Meetings and Notice Thereof

 

Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

J.             Action Without Meeting

 

Any action that, under any provision of the California Business Corporation Act, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized in writing, signed by all of the persons who would be entitled to vote on that action at a meeting, and filed with the Secretary of the corporation. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the corporation.

 

ARTICLE III.

 

DIRECTORS

 

A.            Directors Defined

 

“Directors,” when used in relation to any power or duty requiring collective action, means “Board of Directors.”

 

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B.            Powers

 

Subject to limitation imposed by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

C.            Number of Directors

 

The authorized number of Directors of the corporation shall be not less than one (1) nor more than five (5) until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

D.            Election and Term of Office

 

The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

E.             Vacancies

 

Vacancies on the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of this term of office.

 

F.             Quorum

 

A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

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G.            Place of Meetings

 

Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

H.            Regular Meetings

 

Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

I.              Call of Special Meeting

 

Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of holding of the meeting.

 

J.             Notice of Adjournment

 

Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

K.            Waiver of Notice: Consent to Meeting

 

The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice of a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

L.            Adjournment

 

A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

M.           Actions without Meetings

 

Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to

 

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such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

N.            Fees and Compensation

 

Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

O.            Indemnification of Directors, Officers and Employees

 

1. In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of this alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitably merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

2. Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interest of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

3. The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate.

 

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Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV.

 

OFFICERS

 

A.            Officers

 

The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

B.            Other Officers

 

The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

C.            Removal and Resignation

 

Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance or such resignation shall not be necessary to make it effective.

 

D.            Vacancies

 

A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

E.             Chairman of the Board

 

The Chairman of the Board, if there shall be such officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

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F.             President

 

Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Within this authority and in the course of his duties the President shall be empowered to preside at all meetings of the shareholders and in the absence of the Chairman of the Board, or, if there is none, at all meetings of the Board of Directors, and shall be ex officio a member of all the standing committees, including the Executive Committee, if any.

 

G.            Vice President

 

In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws.

 

H.            Secretary

 

The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

I.              Treasurer

 

The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors.

 

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He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V.

 

EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

A.            Authority for Execution of Instruments

 

The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and that authority may be general or confined to specific instances, and, unless so authorized, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.

 

B.            Execution of Instruments

 

Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, other corporate instruments or documents, and certificates of shares of stock owned by the corporation shall be executed, signed, or endorsed by the President or any Vice President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal affixed thereto.

 

C.            Bank Accounts and Deposits

 

1. All funds of the corporation shall be deposited from time to time to the credit of the corporation with such banks, trust companies, or other depositaries as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the corporation to whom that power may be delegated from time to time by the Board of Directors.

 

2. Endorsements for deposit to the credit of the corporation in any of its duly authorized depositaries may be made without countersignatures by the President or any Vice President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the corporation to whom the Board of Directors, by resolution, shall have delegated that power, or by hand stamped impression in the name of the corporation.

 

3. All checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors.

 

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ARTICLE VI.

 

MISCELLANEOUS

 

A.            Record Date and Closing Stock Books

 

The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any vote at any meeting of shareholders or entitled to notice of any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

B.            Inspection of Corporate Records

 

The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

C.            Certificates for Shares

 

A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

D.            Transfer of Stock

 

The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his

 

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agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

E.             Lost Certificates

 

New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

F.             Corporate Seal

 

A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

G.            Contracts—Execution of Documents

 

The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or top pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

H.            Representation of Shares of Other Corporations

 

The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized to do so by proxy or power of attorney duly executed by said officers.

 

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I.              Inspection of Bylaws

 

The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VII.

 

AMENDMENTS

 

A.            Powers of Shareholders

 

New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

B.            Power of Directors

 

Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

ACKNOWLEDGED AND ADOPTED effective November 17, 1998.

 

 

 

/s/ Beryl E. Artz

 

Beryl E. Artz, Director

 

 

 

/s/ Robert J. Devitz

 

Robert J. Devitz, Director

 

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 EX-3.78(A) 156 a2202241zex-3_78a.htm EX-3.78(A)

Exhibit 3.78(a)

 

 

STATE OF DELAWARE

 

SECRETARY OF STATE

 

DIVISION OF CORPORATIONS

 

FILED 09:00 AM 08/28/2000

 

001436979 — 3222651

 

CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION

 

OF

 

COYOTE MOON GOLF CLUB, LLC

 

It is hereby certified that:

 

1. The name of the limited liability company is Coyote Moon Golf Club, LLC

 

2. The certificate of formation of the limited liability company is hereby amended by striking out Article one thereof and by substituting in lieu of said Article the following new Article:

 

Article One: “The name of the limited liability company is “Empire Ranch, LLC”

 

The effective date of the amendment herein certified shall be August 23, 2000.

 

Executed on the 28th day of August, 2000

 

 

 

 

/s/ Thomas T. Henslee

 

 

Thomas T. Henslee
Secretary

 


 

 

STATE OF DELAWARE

 

SECRETARY OF STATE

 

DIVISION OF CORPORATIONS

 

FILED 09:00 AM 05/02/2000

 

001226727 — 3222651

 

CERTIFICATE OF FORMATION

 

OF

 

COYOTE MOON GOLF CLUB, LLC

 

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

 

FIRST: The name of the limited liability company (hereinafter called the “limited liability company”) is Coyote Moon Golf Club, LLC.

 

SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.

 

 

Executed on May 2, 2000.

 

 

 

 

 

/s/ Thomas T. Henslee

 

 

 

Thomas T. Henslee, Authorized Person

 


 EX-3.78(B) 157 a2202241zex-3_78b.htm EX-3.78(B)

Exhibit 3.78(b)

 

SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
EMPIRE RANCH, LLC

 

This Second Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of Empire Ranch, LLC (the “Company”), is entered into by CCA Mezzanine Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on May 2, 2000, Thomas T. Henslee executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, on August 28, 2000, Thomas T. Henslee executed and filed a Certificate of Amendment to Certificate of Formation with the Delaware Secretary of State, changing the name of the Company from “Coyote Moon Golf Club, LLC” to Empire Ranch, LLC.”

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Limited Liability Company Agreement of Empire Ranch, LLC, dated as of December 26, 2006 entered into by CCA Mezzanine Holdco, LLC as the sole member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1. Name.

 

The name of the limited liability company continued hereby is Empire Ranch, LLC.

 

Section 2. Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 


 

Section 3. Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 4. Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5. Members.

 

(a) The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b) The Member may act by written consent.

 

Section 6. Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company and the Certificate of Amendment thereto with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Amendment to the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7. Purposes.  The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a) to manage, lease and/or operate one or more sports or business clubs, in the City of Folsom, State of California, including the sports or business club commonly known as the Empire Ranch Golf Club (the “Business”);

 

(b) to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

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(c) to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d) to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e) to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8. Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9. Management.

 

(a) Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b) Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c) Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise

 

3


 

provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e) Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f) Committees of Directors.

 

(i)                       The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                    In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                 Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g) Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

4


 

(h) Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i) Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10. Reserved.

 

Section 11. Officers.

 

(a) Officers. Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasures) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b) President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c) Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

5


 

(d) Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e) Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f) Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g) Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12. Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

6


 

Section 13. Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14. Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15. Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16. Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act.

 

Section 17. Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18. Reserved.

 

7


 

Section 19. Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20. Exculpation and Indemnification.

 

(a) Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c) To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person,

 

8


 

a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f) The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21. Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22. Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23. Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

9


 

Section 24. Dissolution.

 

(a) The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b) Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d) The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25. Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any

 

10


 

distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26. Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27. Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 28. Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29. Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30. Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31. Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32. Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

11


 

Section 33. Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34. Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in Empire Ranch, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

 

MEMBER:

 

 

 

 

 

CCA MEZZANINE HOLDCO, LLC

 

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

 

Signature Page to the Second A&R LLC Agreement — Empire Ranch, LLC

 

 

SCHEDULE A

 

Definitions

 

A.                      Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Second Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on May 2, 2000, as amended or amended and restated from time to time.

 

“Company” means Empire Ranch, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means CCA Mezzanine Holdco, LLC, a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Membership
Interest

 

CCA Mezzanine Holdco, LLC

 

CCA Mezzanine Holdco, LLC
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$

100

 

100

%

 

B-1


 

SCHEDULE C

DIRECTORS

 

1.                          Eric L. Affeldt

2.                          Eric C. Resnick

3.                          Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

 

 

Eric L. Affeldt

 

President

 

 

 

 

 

Curt McClellan

 

Treasurer

 

 

 

 

 

Ingrid Keiser

 

Secretary

 

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR EMPIRE RANCH, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-1

100% of Interests

 

Empire Ranch, LLC, a Delaware limited liability company (the “Company”), hereby certifies that CCA Mezzanine Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER        , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in Empire Ranch, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                                 ] as of the date set forth below.

 

Dated:

 

 

 

 

 

 

Name:

 

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF EMPIRE RANCH, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                       (print or typewrite name of Transferee),                                                    (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                                       (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                          , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

 

(Transferor)

 

 

 

Address:

 

 

 

 

 

 

 

 

E-2

 


 EX-3.79(A) 158 a2202241zex-3_79a.htm EX-3.79(A)

Exhibit 3.79(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

FAIR OAKS CLUB CORP.

 

Fair Oaks Club Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Fair Oaks Club Corp.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF FAIR OAKS CLUB CORP.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Fair Oaks Club Corp.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Fair Oaks Ranch & Country Club, in the City of Fair Oaks Ranch, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to Corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Fair Oaks Club Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

FAIR OAKS CLUB CORP.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

FAIR OAKS CLUB CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Fair Oaks Club Corp.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Fair Oaks Ranch & Country Club, in the City of Fair Oaks Ranch, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

2


 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.79(B) 159 a2202241zex-3_79b.htm EX-3.79(B)

Exhibit 3.79(b)

 

AMENDED AND RESTATED BYLAWS
OF
FAIR OAKS CLUB CORP.

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.80(A) 160 a2202241zex-3_80a.htm EX-3.80(A)

Exhibit 3.80(a)

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 06:33 PM 04/05/2007
FILED 06:24 PM 04/05/2007
SRV 070407147 – 4330351 FILE

 

CERTIFICATE OF FORMATION
OF
LIMITED LIABILITY COMPANY

 

FIRST: The name of the limited liability company is:

FARMS OF NEW KENT MANAGEMENT, LLC

 

SECOND: The address of its registered office in the State of Delaware is 2711 Centerville Rd., Suite 400, Wilmington, DE, 19808. The name of its Registered Agent at such address is Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of FARMS OF NEW KENT MANAGEMENT, LLC on this 5th day of April, 2007.

 

 

Corporation Service Company Organizer

 

 

 

 

 

BY:

/s/ Carolyn M. Nye

 

 

Carolyn M. Nye
Assistant Secretary

 


 EX-3.80(B) 161 a2202241zex-3_80b.htm EX-3.80(B)

Exhibit 3.80(b)

 

FIRST AMENDMENT

TO

LIMITED LIABILITY

COMPANY AGREEMENT

OF

FARMS OF NEW KENT MANAGEMENT, LLC

 

This First Amendment to Limited Liability Company Agreement (this “Amendment”) of Farms of New Kent Management, LLC a limited liability company organized under the laws of the state of Delaware is entered into this 10th day of November, 2010 by and between ClubCorp USA, Inc., as the sole equity member (the “Member”). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Operating Agreement (defined below).

 

RECITALS

 

A.            The Member entered into a Limited Liability Company Agreement dated as of April 5, 2007 (the “Operating Agreement”).

 

B.            The Member desires to further amend the Operating Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

 

1.             Section 7(ii) of the Operating Agreement is amended to read as follows:

 

(ii)           to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware; and

 

2.             Section 19 of the Operating Agreement is amended to read as follows:

 

Section 19.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member

 


 

may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

3.             Section 31 of the Operating Agreement is amended to read as follows:

 

Section 31.             Effectiveness.

 

Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as of the time of the filing of the Certificate of Formation with the Office of the Delaware Secretary of State on April 5, 2007.

 

4.             The definition of “Certificate of Formation” included in Schedule A of the Operating Agreement is amended to read as follows:

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on April 5, 2007, as amended or amended and restated from time to time.

 

5.             The definition of “Company” included in Schedule A of the Operating Agreement is amended to read as follows:

 

“Company” means Farms of New Kent Management, LLC, a Delaware limited liability company.

 

6.             Except as modified herein, the Operating Agreement shall continue in full force and effect.

 

7.             This Amendment shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), and all rights and remedies being governed by said laws.

 

[The remainder of this page is intentionally blank.]

 


 

IN WITNESS WHEREOF, the undersigned have executed this Amendment.

 

 

 

MEMBER:

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

Name:

Ingrid Keiser

 

Title:

Secretary

 

Signature Page to the First Amendment to LLC Agreement — Farms of New Kent Management, LLC

 


 

LIMITED LIABILITY COMPANY AGREEMENT

OF

FARMS OF NEW KENT MANAGEMENT, LLC

 

This Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of Farms of New Kent Management, LLC (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on April 5, 2007, the Member caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.               Name.

 

The name of the limited liability company formed hereby is Farms of New Kent Management, LLC.

 

Section 2.               Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.               Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.

 

Section 4.               Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.

 

Section 5.               Members.

 

(a)                The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

(b)               The Member may act by written consent.

 


 

Section 6.               Certificates.

 

The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.               Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(i)            to operate and manage The Club at Viniterra, in the County of New Kent, State of Virginia (the “Property”);

 

(ii)           to engage in such lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware that are incidental to or connected with the foregoing business or purposes or necessary to accomplish the foregoing; and

 

(iii)          to engage in any other lawful business that may be engaged in by a limited liability company organized under the Act, as such business activities may be determined by the Board of Directors from time to time.

 

Section 8.               Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.               Management.

 

(a)                Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The initial Directors designated by the Member shall be as follows:

 

Eric Affeldt;

 

David Woodyard; and

 

Ingrid Keiser.

 

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(b)               Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)               Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                Committees of Directors.

 

(i)            The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)           In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

3


 

(iii)          Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)               Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)               Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)              Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.             Officers.

 

(a)                Officers. The initial Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. The Board of Directors may also choose one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers and agents as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers and agents of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company shall be filled by the Board. The initial Officers of the Company designated by the Member shall be as follows:

 

Eric L. Affeldt

President;

David Woodyard

Vice President

Curt McClellan

Treasurer; and

Ingrid Keiser

Secretary.

 

4


 

(b)               President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11 (c).

 

(c)                Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)               Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this

 

5


 

Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)               Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.             Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 12.             Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.             Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Member shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.             Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.             Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

6


 

Section 16.             Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.             Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.             Exculpation and Indemnification.

 

(a)                Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)               To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim,

 

7

 

demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)               A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. Subject to Section 21, if the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.             Resignation.

 

The Member may resign at any time.

 

Section 21.             Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

8


 

Section 22.             Dissolution.

 

(a)                The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)               Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                Notwithstanding any other provision of this Agreement, the Member waives any right it might have to agree in writing to dissolve the Company upon the Bankruptcy of the Member, or the occurrence of an event that causes the Member to cease to be a member of the Company.

 

(d)               In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(e)                The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.             Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

9


 

Section 24.             Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 25.             Entire Agreement.

 

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

 

Section 26.             Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 27.             Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 28.             Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 29.             Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 30.             Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

10


 

Section 31.             Effectiveness.

 

Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as of the time of the filing of the Certificate of Formation with the Office of the Delaware Secretary of State on April 19, 2010.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Limited Liability Company Agreement as of the 5th day of April, 2007.

 

 

 

MEMBER:

 

 

 

 

 

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

 

 

 

By:

/s/ Eric L. Affeldt

 

 

 

Name: Eric L. Affeldt

 

 

 

Title: President

 

12


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on April 19, 2010, as amended or amended and restated from time to time.

 

“Company” means CCS, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as the initial member of the Company, and includes any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a)(i).

 

B.            Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703

 

$

100

 

100

%

 

 

Attention:

Director of Finance and Chief Legal Officer

 

 

 

 

 

 

B-1


 EX-3.81(A) 162 a2202241zex-3_81a.htm EX-3.81(A)

Exhibit 3.81(a)

 

 

 

STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 02/09/1999
991050252 – 3002743

 

CERTIFICATE OF FORMATION

 

OF

 

FFFC GOLF ACQUISITIONS, L.L.C.

 

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

 

FIRST: The name of the limited liability company (hereinafter called the “limited liability company”) is FFFC Golf Acquisitions, L.L.C.

 

SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.

 

Executed on February 8, 1999.

 

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee, Authorized Person

 


 EX-3.81(B) 163 a2202241zex-3_81b.htm EX-3.81(B)

Exhibit 3.81(b)

 

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

FFFC GOLF ACQUISITIONS, L.L.C.

 

This Second Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of FFFC Golf Acquisitions, L.L.C. (the “Company”), is entered into by CCA Golf Course Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on February 9, 1999, Thomas T. Henslee filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act, as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Limited Liability Company Agreement of FFFC Golf Acquisitions, L.L.C, dated as of December 26, 2006 entered into by CCA Golf Course Holdco, LLC as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.               Name.

 

The name of the limited liability company continued hereby is FFFC Golf Acquisitions, L.L.C.

 

Section 2.               Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.               Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.               Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.               Members.

 

(a)                The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)               The Member may act by written consent.

 

Section 6.               Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.               Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)           to own ownership interests in and act as a member in each of ClubCorp Golf of North Carolina, L.L.C., ClubCorp Golf of California, L.L.C., and ClubCorp Golf of Florida, L.L.C., (such interests are collectively referred to herein as the “Property”);

 

(b)           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)           to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

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filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)           to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.               Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.               Management.

 

(a)           Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)           Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)           Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)           Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

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or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)           Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)            Committees of Directors.

 

(i)            The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)           In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)          Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)           Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)           Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)            Directors as Agents. To the extent of their powers set forth in this Agreement and the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall

 

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bind the Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.             Reserved.

 

Section 11.             Officers.

 

(a)           Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)           President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)           Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)           Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in

 

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order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)           Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)            Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)           Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.             Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member, Special Member or Director of the Company.

 

Section 13.             Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.             Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member

 

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and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.             Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.           Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.             Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.             Reserved.

 

Section 19.             Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.             Exculpation and Indemnification.

 

(a)           Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person

 

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shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)           To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)           To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)           A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)           To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)            The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its

 

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agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.             Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.             Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.             Dissolution.

 

(a)           The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the

 

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event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)           Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)           In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)           The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.        Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.        Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.        Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

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Section 28.      Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.        Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.        Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.        Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.        Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.        Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.        Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

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waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend:

 

This certificate evidences an interest in FFFC Golf Acquisitions, L.L.C. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CCA GOLF COURSE HOLDCO, LLC

 

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the Second A&R LLC Agreement — FFFC Golf Acquisitions L.L.C.

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Second Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this naure, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on February 9, 1999 as amended or amended and restated from time to time.

 

“Company” means FFFC Golf Acquisitions, L.L.C., a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the Act.

 

“Member” means CCA Golf Course Holdco, LLC, a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

CCA Golf Course

 

CCA Golf Course Holdco, LLC

 

$

100

 

100

%

Holdco, LLC

 

c/o ClubCorp, Inc.

 

 

 

 

 

 

 

3030 LBJ Freeway, Suite 600

 

 

 

 

 

 

 

Dallas, TX 75234-7703

 

 

 

 

 

 

 

Attention: Director of Finance

 

 

 

 

 

 

B-1


 

SCHEDULE C

 

 

 

DIRECTORS

 

 

 

1.

 

Eric L. Affeldt

2.

 

Eric C. Resnick

3.

 

Martin J. Newburger

 

C-1


 

SCHEDULE E

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE F

 

CERTIFICATE FOR FFFC GOLF ACQUISITIONS, L.L.C.

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-1

 

100% of Interests

 

FFFC Golf Acqusitions, L.L.C., a Delaware limited liability company (the “Company”), hereby certifies that CCA Golf Course Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER          , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in FFFC Golf Acquisitions, L.L.C. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                      ] as of the date set forth below.

 

Dated:

 

 

 

 

 

 

Name:

 

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF FFFC GOLF ACQUISITIONS, L.L.C.)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                (print or typewrite name of Transferee),                                                                    (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                                                  (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                         , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

 

(Transferor)

 

 

 

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

 

E-2


 EX-3.82(A) 164 a2202241zex-3_82a.htm EX-3.82(A)

Exhibit 3.82(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

FIRST CITY CLUB MANAGEMENT, INC.

 

Pursuant to Section 14-2-1007 of the Georgia Business Corporation Code, these Amended and Restated Articles of Incorporation amend and restate the existing Amended and Restated Articles of Incorporation filed on February 21, 2007, as set forth herein.

 

FIRST.  The name of the corporation is First City Club Management, Inc. (the “Corporation”).

 

SECOND.  [Reserved.]

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Savannah, State of Georgia, including the sports or business club commonly known as First City Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Georgia Business Corporation Code.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved.]

 


 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Georgia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Georgia Business Corporation Code as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Georgia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved.]

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or

 

2


 

state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  To the extent allowed by law, any action that is required to be or may be taken at a meeting of the shareholders of the Corporation may be taken without a meeting if written consent, setting forth the action, shall be signed by persons who would be entitled to vote at a meeting those shares having voting power to cast not less than the minimum number (or numbers, in the case of voting by classes) of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted.  Notice shall be given within ten (10) days of the taking of corporate action without a meeting by less than unanimous written consent to those shareholders on the record date whose shares were not represented on the written consent.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consent dated November 9, 2010, and pursuant to Section 14-2-1003 of the Georgia Business Corporation Code.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

[The remainder of this page is intentionally blank.]

 

3


 

OFFICER’S CERTIFICATE

 

In accordance with Section 14-2-1007 of the Georgia Business Corporation Code, the undersigned, as the duly elected Secretary of First City Club Management, Inc. (the “Corporation”), hereby submits these Amended and Restated Articles of Incorporation of the Corporation for filing with the Secretary of State of the State of Georgia for purposes of amending the Amended and Restated Articles of Incorporation filed on February 21, 2007, in the form of the Amended and Restated Articles of Incorporation as attached hereto.

 

The Amended and Restated Articles of Incorporation contain an amendment that requires shareholder approval.

 

The Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010.

 

The Amended and Restated Articles of Incorporation were approved by the shareholders of the Corporation on November 9, 2010 in accordance with the provisions of Section 14-2-1003 of the Georgia Business Corporation Code.

 

Dated:

November 10th, 2010.

 

 

 

 

 

 

FIRST CITY CLUB MANAGEMENT, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 EX-3.82(B) 165 a2202241zex-3_82b.htm EX-3.82(B)

Exhibit 3.82(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

FIRST CITY CLUB MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of Shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Georgia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of Shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of Shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever Shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of Shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of Shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares

 


 

of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the Shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of Shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of Shareholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of Shareholders or to express consent to corporate action in writing without a meeting may appoint a proxy to vote or otherwise act for the stockholder by signing an appointment form or by an electronic transmission, but no such proxy shall be voted or acted upon after 11 months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of Shareholders need not be by written ballot. At all meetings of Shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the Shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the Shareholders entitled to notice of or to vote at

 

2


 

any meeting of Shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of Shareholders entitled to vote at any meeting of Shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of Shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining Shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining Shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of Shareholders of record entitled to notice of or to vote at a meeting of Shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of Shareholders, a complete list of the Shareholders entitled to vote at the meeting, arranged in alphabetical order, arranged by voting group (and within each voting group by class or series of stock) and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of Shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the Shareholders entitled to examine the list of Shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of Shareholders.

 

3


 

Section 1.10.  Action By Written Consent of Shareholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Georgia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of Shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Not more than 10 days after the taking of such action without a meeting, notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those Shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of Shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of Shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of Shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the Shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

4


 

Directors may adopt by resolution such rules and regulations for the conduct of the meeting of Shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of Shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of Shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of Shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications.  The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be Shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the Shareholders thereafter, the Shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of Shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

5


 

Section 2.3.  Regular Meetings.  Regular meetings of the Board of Directors may be held at such places within or without the State of Georgia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings.  Special meetings of the Board of Directors may be held at any time or place within or without the State of Georgia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing describing the action taken and signed by each director, or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the

 

6


 

corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law or under O.C.G.A. § 14-2-825, and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of Shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

7


 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the reasonable expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon a written affirmation of his/her good faith belief that he or she has met the relevant standard of conduct described in O.C.G.A. § 14-2-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by O.C.G.A. § 14-2-202, and upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this

 

9


 

Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of Shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and Shareholders shall be in writing and delivered personally or mailed to the directors or Shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

10


 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the Shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the Shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

11


 EX-3.83(A) 166 a2202241zex-3_83a.htm EX-3.83(A)

Exhibit 3.83(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

FORT BEND ACQUISITION CORP.

 

Fort Bend Acquisition Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Fort Bend Acquisition Corp.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF FORT BEND ACQUISITION CORP.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Fort Bend Acquisition Corp.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as The Club at Falcon Point, in the City of Katy, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Fort Bend Acquisition Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

FORT BEND ACQUISITION CORP.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

FORT BEND ACQUISITION CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Fort Bend Acquisition Corp.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as The Club at Falcon Point, in the City of Katy, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.83(B) 167 a2202241zex-3_83b.htm EX-3.83(B)

Exhibit 3.83(b)

 

AMENDED AND RESTATED BYLAWS
OF
FORT BEND ACQUISITION CORP.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice

 


 

Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation

 


 

with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered

 


 

Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.84(A) 168 a2202241zex-3_84a.htm EX-3.84(A)

Exhibit 3.84(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

GCC ASSET MANAGEMENT, INC.

 

GCC Asset Management, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is GCC Asset Management, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF GCC ASSET MANAGEMENT, INC.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is GCC Asset Management, Inc.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 


 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Gleneagles Country Club, in the City of Plano, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of GCC Asset Management, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

GCC ASSET MANAGEMENT, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

GCC ASSET MANAGEMENT, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is GCC Asset Management, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Gleneagles Country Club, in the City of Plano, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E.7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

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 EX-3.84(B) 169 a2202241zex-3_84b.htm EX-3.84(B)

Exhibit 3.84(b)

 

AMENDED AND RESTATED BYLAWS
OF
GCC ASSET MANAGEMENT, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice

 


 

Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation

 


 

with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered

 


 

Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.85(A) 170 a2202241zex-3_85a.htm EX-3.85(A)

Exhibit 3.85(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

GLENDALE MANAGEMENT CORP.

 

The following Amended and Restated Articles of Incorporation duly adopted pursuant to the authority and provisions of the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes (the “WBCL”) supersede and take the place of the existing Articles of Incorporation and any Amendments thereto:

 

FIRST.  The name of the corporation is Glendale Management Corp. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of Wisconsin is 25 West Main Street, Madison, Wisconsin 53703.  The name of its registered agent at such address is CSC-Lawyers Incorporating Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Glendale, State of Wisconsin, including the sports or business club commonly known as LeClub (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the State of Wisconsin.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00, and are to be of one class.

 

FIFTH.  [Reserved.]

 

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SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Wisconsin, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Law of the State of Wisconsin as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Wisconsin at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved.]

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or

 

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state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

The foregoing amendment and restatement of the Articles of Incorporation of said corporation contains an amendment to the Articles of Incorporation requiring shareholder approval in accordance with Section 180.1007(4)(a) of the WBCL and was duly adopted by the shareholders of the corporation on November 9, 2010 in accordance with Section 180.1003 of the WBCL.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

GLENDALE MANAGEMENT CORP.

 

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

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 EX-3.85(B) 171 a2202241zex-3_85b.htm EX-3.85(B)

Exhibit 3.85(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

GLENDALE MANAGEMENT CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Wisconsin, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.   Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.   Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Wisconsin and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Wisconsin whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

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Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or a Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it

 

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against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

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Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

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Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.86(A) 172 a2202241zex-3_86a.htm EX-3.86(A)

Exhibit 3.86(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

GLENDALE RACQUET CLUB, INC.

 

The following Amended and Restated Articles of Incorporation duly adopted pursuant to the authority and provisions of the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes (the “WBCL”) supersede and take the place of the existing Articles of Incorporation and any Amendments thereto:

 

FIRST.  The name of the corporation is Glendale Racquet Club, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of Wisconsin is 25 West Main Street, Madison, Wisconsin 53703.  The name of its registered agent at such address is CSC-Lawyers Incorporating Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Glendale, State of Wisconsin, including the sports or business club commonly known as LeClub (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Businessincluding, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the State of Wisconsin.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 2,000.  All such shares are to be Common Stock, with no par value, and are to be of one class.

 

FIFTH.  [Reserved.]

 

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SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Wisconsin, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Law of the State of Wisconsin as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Wisconsin at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved.]

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies (, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or

 

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state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

The foregoing amendment and restatement of the Articles of Incorporation of said corporation contains an amendment to the Articles of Incorporation requiring shareholder approval in accordance with Section 180.1007(4)(a) of the WBCL and was duly adopted by the shareholders of the corporation on November 9, 2010 in accordance with Section 180.1003 of the WBCL.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

GLENDALE RACQUET CLUB, INC.

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

 


 EX-3.86(B) 173 a2202241zex-3_86b.htm EX-3.86(B)

Exhibit 3.86(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

GLENDALE RACQUET CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Wisconsin, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.   Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.   Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Wisconsin and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Wisconsin whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

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Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or a Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it

 

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against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

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Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

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Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.87(A) 174 a2202241zex-3_87a.htm EX-3.87(A)

Exhibit 3.87(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

GP BEAR’S BEST ATLANTA, INC.

 

Pursuant to Section 14-2-1007 of the Georgia Business Corporation Code, these Amended and Restated Articles of Incorporation amend and restate the existing Amended and Restated Articles of Incorporation filed on February 21, 2007, as set forth herein.

 

FIRST. The name of the corporation is GP Bear’s Best Atlanta, Inc. (the “Corporation”).

 

SECOND. [Reserved.]

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own ownership interests and act as partner in Bear’s Best Atlanta, LP (the “Property”) and to operate or cause the Bear’s Best Atlanta golf club to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Georgia Business Corporation Code.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. [Reserved.]

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 


 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in the manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Georgia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. [Reserved.]

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Georgia Business Corporation Code as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Georgia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. [Reserved.]

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment

 

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for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH. To the extent allowed by law, any action that is required to be or may be taken at a meeting of the shareholders of the Corporation may be taken without a meeting if written consent, setting forth the action, shall be signed by persons who would be entitled to vote at a meeting those shares having voting power to cast not less than the minimum number (or numbers, in the case of voting by classes) of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted. Notice shall be given within ten (10) days of the taking of corporate action without a meeting by less than unanimous written consent to those shareholders on the record date whose shares were not represented on the written consent.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consent dated November 9, 2010, and pursuant to Section 14-2-1003 of the Georgia Business Corporation Code. These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

[The remainder of this page is intentionally blank.]

 

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IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

GP BEAR’S BEST ATLANTA, INC.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

 

2010 NOV 15  PM 5:13

 

SECRETARY OF STATE

CORPORATIONS DIVISION

 


 

 

Control No: K920102
Date Filed: 11/15/2010 10:13 AM
Brian P. Kemp
Secretary of State

 

OFFICER’S CERTIFICATE

 

In accordance with Section 14-2-1007 of the Georgia Business Corporation Code, the undersigned, as the duly elected Secretary of GP Bear’s Best Atlanta, Inc. (the “Corporation”), hereby submits these Amended and Restated Articles of Incorporation of the Corporation for filing with the Secretary of State of the State of Georgia for purposes of amending the Articles of Incorporation filed on February 21, 2007, in the form of the Amended and Restated Articles of Incorporation as attached hereto.

 

The Amended and Restated Articles of Incorporation contain an amendment that requires shareholder approval.

 

The Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010.

 

The Amended and Restated Articles of Incorporation were approved by the shareholders of the Corporation on November 9, 2010 in accordance with the provisions of Section 14-2-1003 of the Georgia Business Corporation Code.

 

Dated: November 10, 2010.

 

 

GP BEAR’S BEST ATLANTA, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

 

[Bar Code]

 


 EX-3.87(B) 175 a2202241zex-3_87b.htm EX-3.87(B)

Exhibit 3.87(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

GP BEAR’S BEST ATLANTA, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of Shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Georgia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of Shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of Shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever Shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of Shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of Shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares

 


 

of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the Shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of Shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of Shareholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of Shareholders or to express consent to corporate action in writing without a meeting may appoint a proxy to vote or otherwise act for the stockholder by signing an appointment form or by an electronic transmission, but no such proxy shall be voted or acted upon after 11 months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of Shareholders need not be by written ballot. At all meetings of Shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the Shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the Shareholders entitled to notice of or to vote at

 

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any meeting of Shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of Shareholders entitled to vote at any meeting of Shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of Shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining Shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining Shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of Shareholders of record entitled to notice of or to vote at a meeting of Shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of Shareholders, a complete list of the Shareholders entitled to vote at the meeting, arranged in alphabetical order, arranged by voting group (and within each voting group by class or series of stock) and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of Shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the Shareholders entitled to examine the list of Shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of Shareholders.

 

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Section 1.10. Action By Written Consent of Shareholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Georgia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of Shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Not more than 10 days after the taking of such action without a meeting, notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those Shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of Shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of Shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of Shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the Shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of Shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of Shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of Shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of Shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be Shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the Shareholders thereafter, the Shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of Shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Georgia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Georgia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing describing the action taken and signed by each director, or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the

 

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corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law or under O.C.G.A. § 14-2-825, and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of Shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

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Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the reasonable expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon a written affirmation of his/her good faith belief that he or she has met the relevant standard of conduct described in O.C.G.A. § 14-2-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by O.C.G.A. § 14-2-202, and upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this

 

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Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of Shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and Shareholders shall be in writing and delivered personally or mailed to the directors or Shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

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Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the Shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the Shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.88(A) 176 a2202241zex-3_88a.htm EX-3.88(A)

Exhibit 3.88(a)

 

CERTIFICATE OF

 

THIRD AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

GP BEAR’S BEST LAS VEGAS, INC.

 

The undersigned officer of GP Bear’s Best Las Vegas, Inc., a Nevada Corporation, for the purposes of amending and restating, pursuant to Nevada Revised Statues 78.390 and 78.403, the Articles of Incorporation originally filed with the Secretary of State of the State of Nevada on December 8, 1999, hereby executes these Third Amended and Restated Articles of Incorporation and certifies that such Third Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010, and were adopted by the sole stockholder of the Corporation on November 9, 2010, as follows:

 

1.                                       Name of Corporation:  GP Bear’s Best Las Vegas, Inc. (the “Corporation”).

 

2.                                       Authorized Capital Stock:  The total authorized capital stock of the Corporation shall consist of one thousand (1,000) shares of common stock having a par value of one dollar ($1.00).

 

3.                                       Purpose:  The purpose of the Corporation shall be to engage in any lawful activity, including, without limitation, the following:

 

(a)                                  to own ownership interests and act as a partner in GP Bear’s Best Las Vegas LP (the “Property”) and to operate or cause the Bear’s Best Las Vegas Golf Club to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

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(e)                                  to engage in such lawful activities and to exercise such powers permitted to corporations under the corporate laws of the State of Nevada.

 

4.                                       Management of the Corporation:  The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.  The Board of Directors shall be elected in such manner as shall be provided in the Bylaws of the Corporation (as amended from time to time, the “Bylaws”). The number of directors may be changed form time to time in such a manner as shall be provided in the Bylaws, provided that the number of directors shall not be less than one (1).

 

5.                                       Additional Provisions:

 

(a)                                  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

(b)                                 The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

 

*

*

*

 

 

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IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed this Certificate of Third Amended and Restated Articles of Incorporation on this 10th day of November, 2010.

 

 

 

GP BEAR’S BEST LAS VEGAS, INC.

 

 

 

 

 

 

 

By

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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 EX-3.88(B) 177 a2202241zex-3_88b.htm EX-3.88(B)

Exhibit 3.88(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

GP BEAR’S BEST LAS VEGAS, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Nevada, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting, signed in accordance with applicable law, shall be given that shall state the place, if any, date and hour of the meeting, the means of electronic communications, if any, by which stockholders and proxies shall be deemed to be present in person and vote, and the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation, as amended, or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but, except as otherwise provided in this section 1.7, no such proxy shall be voted or acted upon after six months from its creation, unless the proxy provides for a longer period which may not exceed seven years from its creation. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, such as the appointment as proxy of a pledgee, a person who purchased or agreed to purchase the shares, a creditor of the corporation who extended it credit under terms requiring the appointment, an employee of the corporation whose employment contract requires the appointment or a party to a voting agreement created pursuant to subsection 3 of Nevada Revised Statutes 78.365. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the

 

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rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the Board of Directors may fix a new record date for the adjourned meeting. The Board of Directors must fix a new record date if the meeting is adjourned to a date more than 60 days later than the date set for the original meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that

 

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the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Nevada, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. To the extent permitted by applicable law, the corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of

 

4


 

proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, to the extent permitted by applicable law, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Nevada and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Nevada whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice

 

6


 

Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7


 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Unless the Board of Director appoints alternate members, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. All officers must be natural persons. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, to the extent permitted by applicable law, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may, to the extent

 

11


 

permitted by applicable law, file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.89(A) 178 a2202241zex-3_89a.htm EX-3.89(A)

Exhibit 3.89(a)

 

STATE OF ARIZONA

 

ARTICLES OF AMENDMENT

 

TO THE ARTICLES OF INCORPORATION

 

OF

 

GRANCH GOLF CLUB, INC.

 

GRanch Golf Club, Inc., an Arizona corporation (the “Corporation”), hereby adopts the following Articles of Amendment in accordance with Sections 10-1003 and 10-1006 of the Arizona Business Corporation Act.

 

FIRST:            The name of the Corporation is GRanch Golf Club, Inc.  The Corporation was originally incorporated by filing Articles of Incorporation with the Arizona Corporation Commission on April 14, 1995.

 

SECOND:       The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety to read as set forth on Exhibit A attached hereto, and the Amended and Restated Articles of Incorporation shall supersede the original Articles of Incorporation and all amendments to the original Articles of Incorporation.

 

THIRD:          The amendment does not provide for an exchange, reclassification, or cancellation of issued shares.

 

FOURTH:      The amendment to the Articles of Incorporation of the Corporation was adopted by the board of directors of the Corporation as of the 9th day of November, 2010.

 

FIFTH:           The amendment to the Articles of Incorporation was approved by the shareholders of the Corporation as of the 9th day of November, 2010.  There was one voting group eligible to vote on the amendment.

 

SIXTH:           The voting group consisting of 1,000 outstanding shares of Common Stock was entitled to 1,000 votes and there were 1,000 votes represented by written consent in lieu of a meeting.

 

SEVENTH:     There was one voting group consisting of one thousand (1,000) outstanding shares of Common Stock and that voting group was entitled to one thousand (1,000) votes on the amendment.  The total number of undisputed votes cast for the amendment was one thousand (1,000) and that number was sufficient for approval of the amendment.

 


 

IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed these Articles of Amendment this 10th day of November, 2010.

 

 

GRANCH GOLF CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 

EXHIBIT A

 

FIRST.            The name of the corporation is GRanch Golf Club, Inc. (the “Corporation”).

 

SECOND.       The address of the Corporation’s statutory agent in the State of Arizona is 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85021.  The name of its statutory agent at such address is Corporation Service Company.

 

THIRD.          The street address of the known place of business for the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

FOURTH.      Reserved.

 

FIFTH.           The character of business that the Corporation intends to conduct in the State of Arizona is the ownership and operation of a golf course.  The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Gainey Ranch Country Club, in the City of Scottsdale, State of Arizona (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Arizona Business Corporation Act.

 

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SIXTH.           The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

SEVENTH.     Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

EIGHTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

NINTH.          In furtherance and not in limitation of the powers conferred by the laws of the State of Arizona, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

TENTH.         The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ELEVENTH.  Reserved.

 

TWELFTH.   A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Arizona Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

THIRTEENTH.     The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Arizona at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

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FOURTEENTH.    Reserved.

 

FIFTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

SIXTEENTH.  Unless the By-laws of the Corporation provide otherwise and the statutory agent expressly consents thereto in writing, all records required pursuant to the Arizona Business Corporation Act to be kept by the Corporation or its agent shall be kept by the Corporation at the known place of business of the Corporation.

 

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 EX-3.89(B) 179 a2202241zex-3_89b.htm EX-3.89(B)

Exhibit 3.89(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

GRANCH GOLF CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. Pursuant to the Arizona Business Corporation Act (the “BCA”), an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Arizona, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation or any Arizona statute, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after twelve months from its date, unless the proxy provides for a longer period. An executed proxy shall be revocable by the shareholder unless the proxy conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority

 

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in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by

 

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applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, if the action is taken by all of the shareholders entitled to vote on the action. The action must be evidenced by one or more written consents describing the action taken, signed by all of the shareholders entitled to vote on the action and shall be delivered to the corporation by delivery to its registered office in the State of Arizona, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. A consent signed under this Section has the effect of a meeting vote. If not otherwise fixed in accordance with Section 1.8 hereof or by the BCA, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs the consent. Unless otherwise specified in the consent or consents, the action is effective on the date that the last shareholder signs the consent or consents.

 

Section 1.11. Voting for Directors. Unless otherwise provided in the articles of incorporation, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. At each election for directors, the shareholders are entitled to cumulate their votes by multiplying the number of votes they are entitled to cast by the number of directors for whom they are entitled to vote and casting the product for a single candidate or distributing the product among two or more candidates.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to

 

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shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be residents of the State of Arizona or shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Arizona and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Arizona whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law. A consent signed under this Section has the effect of a meeting vote. Action taken under this Section is effective when the last director signs the consent, unless the consent specifies a different effective date. Any director may revoke a consent by delivering a signed revocation of the consent to the president or secretary before the date the last director signs the consent or consents.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees.

 

(a) The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation and each member of a committee shall serve at the pleasure of the board of directors. The creation of a committee and appointment of members to it shall be approved by a majority of all of the directors in office when the action is taken. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(b) Subject to the limitations set forth in paragraph (c) of this Section 3.1, each committee may exercise the authority of the board of directors to the extent specified by the board of directors or in the articles of incorporation or bylaws.

 

(c) A committee shall not take any of the following actions:

 

(i) Authorize distributions;

 

(ii) Approve or submit to shareholders any action that requires shareholder approval;

 

(iii) Fill vacancies on the board of directors or on any of its committees;

 

(iv) Amend the articles of incorporation;

 

(v) Adopt, amend or repeal these Bylaws;

 

(vi) Approve a plan of merger not requiring shareholder approval;

 

(vii) Authorize or approve reacquisition of shares, except according to a formula or method prescribed by the board of directors;

 

(viii) Authorize or approve the issuance, sale or contract for sale of shares or determine the designation and relative rights, preferences and limitations of a class or series of shares, except that the board of directors may authorize a committee or an executive officer of the Corporation to do so within limits specifically prescribed by the board of directors; or

 

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(ix) Fix the compensation of directors for serving on the board of directors or any committee of the board of directors.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a articles signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the articles may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a articles shall have ceased to be such officer, transfer agent, or registrar before such articles is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to submit to the corporation a properly executed lost security affidavit and/or indemnity agreement, or to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.90(A) 180 a2202241zex-3_90a.htm EX-3.90(A)

Exhibit 3.90(a)

 

ARTICLES OF RESTATEMENT OF

 

GREENBRIER COUNTRY CLUB, INC.

 

The undersigned corporation, pursuant to Title 13.1, Chapter 9, Article 11 of the Code of Virginia, hereby executes the following articles of restatement and sets forth:

 

1.                                      The name of the corporation immediately prior to restatement is Greenbrier Country Club, Inc.

 

2.                                      The restatement contains an amendment to the articles of incorporation.

 

3.                                      The text of the amended and restated articles of incorporation is attached hereto.

 

4.                                      The restatement was adopted by the corporation on November 9, 2010.

 

5.                                      The restatement was adopted by unanimous consent of the shareholders.

 

 

Executed in the name of the corporation by:

 

 

/s/ Ingrid Keiser

 

November 10, 2010.

 

 

 

Ingrid Keiser

 

Secretary

 

 

 

 

 

 

 

0297684 3

 

 

(telephone number (optional))

 


 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

GREENBRIER COUNTRY CLUB, INC.

 

Pursuant to Section 13.1-711 of the Virginia Stock Corporation Act, the Articles of Incorporation of Greenbrier Country Club, Inc. are hereby amended and restated to read as follows:

 

FIRST.  The name of the corporation is Greenbrier Country Club, Inc. (the “Corporation”).

 

SECOND.  A.                        The name of the corporation’s registered agent is Corporation Service Company.

 

B.                     The registered agent is (mark appropriate box):

 

(1)                                                                                an individual who is a resident of Virginia and

o                                   an initial director of the corporation.

o                                   a member of the Virginia State Bar.

OR

(2)                                  x                                 a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia.

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Greenbrier Country Club, in the City of Chesapeake, State of Virginia (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

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(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Virginia Stock Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [RESERVED]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in the manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Virginia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

TENTH.  [RESERVED].

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Virginia Stock Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or

 

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protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Virginia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [RESERVED].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Corporate action required or permitted by Chapter 9 of the Virginia Stock Corporation Act may be taken without a meeting and without prior notice, if the corporate action is taken by a written consent signed by shareholders who would be entitled to vote at a meeting of holders of outstanding shares having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take the corporate action at a meeting at which all shareholders entitled to vote thereon were present and voted.

 

SIXTEENTH.  These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 13.1-711 of the Virginia Stock Corporation Act.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

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 EX-3.90(B) 181 a2202241zex-3_90b.htm EX-3.90(B)

Exhibit 3.90(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

GREENBRIER COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the Commonwealth of Virginia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken unless the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, in which event the Board of Directors shall fix a new record date. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the Commonwealth of Virginia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

4


 

Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. Except to the extent required by the Corporation’s Articles of Incorporation, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the Commonwealth of Virginia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the Commonwealth of Virginia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.91(A) 182 a2202241zex-3_91a.htm EX-3.91(A)

Exhibit 3.91(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

GREENSPOINT CLUB, INC.

 

Greenspoint Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Greenspoint Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF GREENSPOINT CLUB, INC.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Greenspoint Club, Inc.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Greenspoint Club (the “Business”);

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Greenspoint Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

GREENSPOINT CLUB, INC.

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

GREENSPOINT CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Greenspoint Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Greenspoint Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.91(B) 183 a2202241zex-3_91b.htm EX-3.91(B)

Exhibit 3.91(b)

 

AMENDED AND RESTATED BYLAWS
OF
GREENSPOINT CLUB, INC.

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.92(A) 184 a2202241zex-3_92a.htm EX-3.92(A)

Exhibit 3.92(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

HACKBERRY CREEK COUNTRY CLUB, INC.

 

Hackberry Creek Country Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Hackberry Creek Country Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF HACKBERRY CREEK COUNTRY CLUB, INC.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Hackberry Creek Country Club, Inc.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Hackberry Creek Country Club, in the City of Irving, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Hackberry Creek Country Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

HACKBERRY CREEK COUNTRY CLUB, INC.

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

HACKBERRY CREEK COUNTRY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Hackberry Creek Country Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(f)                                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Hackberry Creek Country Club, in the City of Irving, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(g)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(h)                                 to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(i)                                     to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(j)                                     to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.92(B) 185 a2202241zex-3_92b.htm EX-3.92(B)

Exhibit 3.92(b)

 

AMENDED AND RESTATED BYLAWS
OF
HACKBERRY CREEK COUNTRY CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice

 


 

Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation

 


 

with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered

 


 

Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.93(A) 186 a2202241zex-3_93a.htm EX-3.93(A)

Exhibit 3.93(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

HAILE PLANTATION MANAGEMENT CORP.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Haile Plantation Management Corp. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Haile Plantation Management Corp.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on March 16, 1995.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The Articles of Incorporation of the Corporation are amended and restated to read in their entirety as follows:

 

ARTICLE I

 

The name of the Corporation is Haile Plantation Management Corp.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

1


 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Haile Plantation Golf & Country Club, in the City of Gainesville, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

2


 

ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition

 

3


 

seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

4


 

IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — Haile Plantation Management Corp.

 


 EX-3.93(B) 187 a2202241zex-3_93b.htm EX-3.93(B)

Exhibit 3.93(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

HAILE PLANTATION MANAGEMENT CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Florida and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

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Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.94(A) 188 a2202241zex-3_94a.htm EX-3.94(A)

Exhibit 3.94(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

HARBOUR CLUB OF CHARLESTON, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed with the Secretary of State of the State of South Carolina on March 1, 1993 pursuant to Section 33-10-107 of the South Carolina Business Corporation Act of 1988, hereby execute this Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST.  The name of the corporation is Harbour Club of Charleston, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of South Carolina is 5000 Thurmond Mall Boulevard, Columbia, 29201.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Charleston, State of South Carolina, including the sports or business clubs commonly known as Harbour Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the South Carolina Business Corporation Act of 1988.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

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FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.  Directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present.  Shareholders do not have a right to cumulate their votes for directors.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in the manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of South Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the South Carolina Business Corporation Act of 1988 as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of South Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

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FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.

 

*  *  *

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation.  Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.                                       On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.                                       The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.                                       The amendments were adopted by the shareholders.  On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock.  The number cast for the amendment was sufficient for approval by that voting group.

 

Dated: November 10, 2010.    HARBOUR CLUB OF CHARLESTON, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

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 EX-3.94(B) 189 a2202241zex-3_94b.htm EX-3.94(B)

Exhibit 3.94(b)

 

BYLAWS OF

 

CITY CLUB OF SOUTH CAROLINA, INC.

 

ARTICLE I.

 

OFFICES

 

A.    Registered Office

 

The registered office of the corporation is located at 75 Beattie Place, Two Shelter Centre, Greenville, South Carolina 29601.

 

B.    Registered Agent

 

The name of the registered agent of the corporation at such address is C.T. Corporation System.

 

C.    Principal Office

 

The Board of Directors pursuant to a properly authorized resolution has full power and authority to change the principal office from one location to another.

 

D.    Other Offices

 

The corporation may also have offices at such other places, within or without the State of South Carolina, where the corporation is qualified to do business, as the Board of Directors may from time to time designate, or the business of the corporation may require.

 

ARTICLE II.

 

SHAREHOLDERS MEETINGS

 

A.    Place of Meetings

 

Meeting of shareholders shall be held at any place designated by the Board of Directors pursuant to authority hereinafter granted to the Board, or by the written consent of all persons entitled to vote thereat. In the absence of any such designation, shareholders’ meeting shall be held at the registered office of the corporation. Any meeting is valid wherever held if held by the written consent of all the persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation.

 

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B.    Time of Annual Meeting — Business Transacted

 

The annual meeting of shareholders shall be held on the third (3rd) Wednesday of December of each year, at the hour of 10:00 a.m., provided, however, that should said day fall upon a legal holiday, then at the same time on the next business day thereafter. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted that is within the powers of the shareholders.

 

C.    Failure to Hold Annual Meeting

 

If, within any 13-month period, an annual meeting of shareholders is not held, any shareholder may apply to any court of competent jurisdiction in the county in which the principal office of the corporation is located for a summary order that an annual meeting be held.

 

D.    Conduct of Meetings

 

At every meeting of the shareholders, the President, or, in the President’s absence, a Vice President designated by the President, or, in the absence of such designation, any other person chosen by a majority of the shareholders of the corporation present in person or by proxy and entitled to vote, shall act as chairman of the shareholders’ meeting. The Secretary of the corporation, or, in the Secretary’s absence, an Assistant Secretary, shall act as Secretary of all meetings of the shareholders. In the absence of the Secretary or Assistant Secretary, the Chairman may appoint another person to act as Secretary of the meeting.

 

E.     Action Without Meeting

 

Any action that, under any provision of the South Carolina Business Corporations Act, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized in writing, signed by all of the persons who would be entitled to vote on that action at a meeting, and filed with the Secretary of the corporation. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the corporation.

 

F.     Telephone Meetings

 

Subject to the notice provisions required by these Bylaws and by the South Carolina Business Corporations Act, shareholders may participate in and hold a meeting by means of conference telephone or similar communications equipment by which all persons participating can hear each other. Participation in such a meeting shall constitute presence in person at such meeting, except participation for the express purpose of objecting to the

 

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transaction of any business on the ground that the meeting is not lawfully called or convened.

 

G.    Notice of Meetings

 

(1) Notice of all meetings of shareholders shall be given in writing to shareholders entitled to vote by the President or Secretary or by the officer or person calling the meeting, or, in case of that person’s neglect or refusal, or if there is no person charged with the duty of giving notice, by a Director or shareholder. The notice shall be given to each shareholder, either personally or by prepaid mail, addressed to the shareholder at his address as it appears on the transfer books of the corporation.

 

(2) Notice of any meeting of shareholders shall be sent to each shareholder entitled thereto not less than ten (10) nor more than fifty (50) days before the meeting.

 

(3) Notice of any meeting of shareholders shall specify the place, date, and hour of the meeting. The notice shall also specify the purpose of the meeting if it is a special meeting, or if its purpose, or one of its purposes, will be to consider a proposed amendment of the articles of incorporation, to consider a proposed reduction of stated capital without amendment, to consider a proposed merger or consolidation, to consider a voluntary dissolution or the revocation of a voluntary dissolution by act of the corporation, or to consider a proposed disposition of all, or substantially all, of the assets of the corporation outside of the ordinary course of business.

 

(4) When a shareholders’ meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. When a meeting is adjourned for less than thirty (30) days, it is not necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted thereat other than by announcement at the meeting at which the adjournment is taken.

 

H.    Waiver of Notice

 

Any notice required by law or by these Bylaws may be waived by execution of a written waiver of notice executed by the person entitled to the notice. The waiver may be signed before or after the time stated in the notice.

 

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I.      Persons Entitled to Call Special Meetings

 

(1) Special meetings of the shareholders, for any purpose whatsoever, may be called at any time by any of the following: (a) the President; (b) the Board of Directors; (c) one or more shareholders holding not less than one tenth (1/10th) of all the shares entitled to vote at the meetings.

 

(2) Any person or persons, except the President and/or the Board of Directors, entitled under Subparagraph (1) above to call a special meeting of shareholders may do so only by written request sent by registered mail or delivered in person to the President or Secretary. The officer receiving the written request shall within ten (10) days from the date of its receipt cause notice of the meeting to be given in the manner provided in Paragraph G of Article II of these Bylaws to all shareholders entitled to vote at the meeting. If the officer does not give notice of the meeting within ten (10) days after the date of receipt of the written request, the person or persons calling the meeting may fix the time of meeting and give the notice in the manner provided in Paragraph G of Article II of these Bylaws. Nothing contained in this section shall be construed as limiting, fixing, or affecting the time of date when a meeting of shareholders called by action of the Board of Directors may be held.

 

J.     Quorum of Shareholders

 

(1) The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting constitutes a quorum for the transaction of business.

 

(2) In the absence of a quorum or the withdrawal of enough shareholders to leave less than a quorum, any meeting of shareholders may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but no other business may be transacted.

 

K.    Determination of Eligible Shareholders

 

(1) For the purposes of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper

 

4


 

purpose, the Board of Directors may provide that the share transfer books shall be closed for a stated period not to exceed, in any case, fifty (50) days. If the transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten (10) days immediately preceding such meeting.

 

(2) In lieu of closing the share transfer books, the Board of Directors may fix in advance a date as the record date for any determination of shareholders, such date in any case to be not more than fifty (50) days and, in case of a meeting of shareholders, not less than ten (10) days prior to the date on which the action requiring that determination of shareholders is to be taken.

 

(3) If the share transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring the dividend is adopted, as the case may be, is the record date for determination of shareholders.

 

(4) When any determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this Paragraph, that determination shall apply to any adjournment thereof except when the determination has been made through closing of the transfer books and the stated period of closing has expired, in which case the Board of Directors shall make a new determination as hereinbefore provided.

 

L.    Votes Per Share

 

Each outstanding share, regardless of class, shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of shareholders. Cumulative voting is expressly prohibited.

 

M.   Number of Votes Necessary to Take Action

 

The vote of the holders of a majority of the shares entitled to vote and represented at a meeting at which a quorum is present shall be the act of the shareholders’ meeting.

 

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N.    Voting by Voice and Ballot

 

Elections for Directors need not be by ballot unless a shareholder demands election by ballot at the election and before the voting begins.

 

O.    Other Corporation, Etc., as Shareholders

 

(1) Shares standing in the name of another corporation, domestic or foreign (including a foreign corporation without a permit to do business in the State of South Carolina), may be voted by that officer, agent, or proxy as the bylaws of that other corporation may authorize, or in the absence of such authorization, as the board of directors of that corporation may determine.

 

(2) Shares held by an administrator, executor, guardian, or conservator may be voted by that person without a transfer of the shares into his or her name, provided those shares form a part of the estate and are in the possession of that person. The shares may be voted either in person or by proxy.

 

(3) Shares standing in the name of a trustee may be voted by that trustee, either in person or by proxy, but only if the shares to be voted are in his name as trustee.

 

(4) Shares standing in the name of a receiver may be voted by that receiver. Shares held by or under the control of a receiver may be voted by that receiver without the transfer thereof into his or her name if authority to do so is contained in an appropriate order of the court by which that receiver was appointed.

 

(5) A shareholder whose shares are pledged shall be entitled to vote those shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the transferred shares.

 

P.    Proxies

 

A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. Each proxy shall be revocable unless expressly provided therein to be irrevocable and unless otherwise made irrevocable by law.

 

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Q.    Voting Trusts

 

Any number of shareholders of this corporation may create a voting trust for the purpose of conferring upon trustees the right to vote or otherwise represent their shares, for a period not to exceed ten (10) years. The members of the voting trust must enter into a written voting trust agreement transferring their shares to the trustees, and specifying the terms and conditions of the voting trust. A counterpart of the agreement must be deposited at this corporation’s registered office. The counterpart of the agreement will be subject to the same right of examination by any shareholder of the corporation, in person or by agent or attorney, as the rest of the books and records of the corporation, and will be subject to examination by any holder of a beneficial interest in the voting trust, either in person or by agent or attorney, at any reasonable time for any proper purpose.

 

R.    Voting Agreement

 

Any number of shareholders of this corporation may enter into a voting agreement in writing for the purpose of voting their shares as a unit, in the manner prescribed in the agreement, on any matter submitted to a vote at any shareholders meeting, for a period not to exceed ten (10) years from the date of execution of the agreement. A counterpart of the agreement must be deposited at this corporation’s principal office. The counterpart of this agreement will be subject to the same right of examination by any shareholder of the corporation, in person or by agent or attorney, as the rest of the books and records of the corporation. Each certificate representing shares held by the parties to the agreement shall contain a statement that the shares represented by the certificate are subject to the provisions of a voting agreement, a counterpart of which has been deposited with the corporation at its principal office.

 

S.    Appointment and Duties of Inspectors of Election

 

(1) In advance of any meeting of shareholders, the Board of Directors may appoint any person, other than nominees for office, as inspectors of election to act at that meeting or any adjournment thereof. If inspectors of election are not appointed, the chairman of any meeting may, and on the request of any shareholder or shareholder’s proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares present shall determine whether one or three inspectors are to be appointed. In case any person appointed as inspector fails to appear or fails or refuses to act, the vacancy may be filled by appointment

 

7


 

by the Board of Directors in advance of the meeting, or at the meeting by the person acting as chairman.

 

(2) The inspectors of election shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies. The inspectors shall also receive votes, ballots, or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine the result, and do such acts as may be proper to conduct the election or vote with fairness to all shareholders. The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability, and as expeditiously as is practical.

 

(3) If there are three inspectors of election the decision, act, or certificate of a majority is effective in all respects as the decision, act, or certificate of all.

 

(4) On request of the chairman of the meeting or of any shareholder or his proxy the inspectors shall make a report in writing of any challenge or question or matter determined by them and execute a certificate of any fact found by them. Any report or certificate made by them is prima facie evidence of the facts stated therein.

 

ARTICLE III.

 

DIRECTORS

 

A.    Directors Defined

 

“Directors,” when used in relation to any power or duty requiring collective action, means “Board of Directors.”

 

B.    Powers

 

The business and affairs of the corporation and all corporate powers shall be exercised by or under authority of the Board of Directors, subject to limitation imposed by the South Carolina Business Corporations Act, the Articles of Incorporation, or these Bylaws as to action that requires authorization or approval by the shareholders.

 

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C.    Number of Directors

 

The number of Directors of this corporation shall be not less than one (1) nor more than five (five). The Directors do not need be shareholders or residents of the State of South Carolina. The maximum or the minimum number of Directors may be increased or decreased from time to time by amendment to these Bylaws, but no decrease shall have the effect of shortening the term of any incumbent Director. Each year at the meeting of the Shareholders which is called to elect Directors, the Shareholders shall first decide the number of Directors (between the maximum and the minimum) to be elected for that year. Such decision shall be by a vote of shareholders holding a majority of the outstanding shares entitled to vote at an election of Directors. If no such vote is taken, nor a motion made, duly seconded and carried calling for such vote, then it shall be conclusively presumed that the same number of Directors as were elected the immediately preceding year shall be elected and shall serve for that year.

 

D.    Term of Office

 

The Director named in the articles shall hold office until the first annual or the organization meeting of shareholders and until his successors are elected and qualified, either at an annual or a special meeting of shareholders. Directors, elected or appointed other than named in the articles, shall hold office until the next annual meeting and until their successors are elected and qualified.

 

E.     Vacancies

 

(1) Vacancies on the Board of Directors shall exist in the case of the occurrence of any of the following events: (a) the death, resignation, or removal of any Director; (b) the authorized number of Directors is increased; or (c) at any annual, regular, or special meeting of shareholders at which any Director is elected, the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

(2) Vacancies other than those caused by an increase in the number of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director. Each Director so elected shall hold office until his successor is elected at an annual, regular, or special meeting of the shareholders.

 

(3) Any vacancy caused by an increase in the number of Directors shall be filled by the shareholders at an

 

9


 

annual meeting or at a special meeting called for that purpose. The shareholders may also elect a Director at any time to fill any vacancy not filled by the Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders may elect a successor to take office when the resignation becomes effective.

 

(4) A reduction of the authorized number of Directors shall not remove any Director prior to the expiration of that Director’s term of office.

 

F.     Removal of Directors

 

The entire Board of Directors or any individual Director may be removed from office by a vote of shareholders holding a majority of the outstanding shares entitled to vote at an election of Directors.

 

G.    Place of Meetings

 

Regular meetings of the Board of Directors shall be held at any place within or without the State of South Carolina that may be designated from time to time by resolution of the Board or by written consent of all members of the Board. In the absence of such designation, regular meetings shall be held at the registered office of the corporation. Special meetings of the Board may be held either at a place so designated or at the registered office. Any regular or special meeting is valid, wherever held, if held on written consent of all members of the Board given either before or after the meeting and filed with the Secretary of the corporation.

 

H.    Regular Meetings

 

(1) Regular meetings of the Board of Directors shall be held following each annual meeting of shareholders. No notice of such meeting need be given.

 

(2) The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, are as valid as though made at a meeting duly held after regular call and notice, if a quorum is present.

 

I.      Call of Special Meeting

 

(1) Special meetings of the Board of Directors of this corporation shall be called by the President, or, if he is absent or is unable or refuses to act, by any Vice President or by any two (2) Directors.

 

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(2) Written notice of the time, place, and purpose of special meetings of the Board of Directors shall be delivered personally to each Director, or sent to each Director by mail or by other form of written communication, at least seven (7) days before the meeting. If the address of a Director is not shown on the records and is not readily ascertainable, notice shall be addressed to him at the city or place in which the meetings of the Directors are regularly held. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

J.     Quorum

 

A majority of the authorized number of Directors constitutes a quorum of the Board for the transaction of business.

 

K.    Majority Action

 

Every act or decision done or made by a majority of the Directors present at any duly held meeting at which a quorum is present is an act of the Board of Directors.

 

L.    Action by Consent of Board Without Meeting

 

Any action required or permitted to be taken by the Board of Directors under any provision of the South Carolina Business Corporations Act may be taken without a meeting, if all members of the Board shall individually or collectively consent in writing to the action. The written consent or consents shall be filed with the minutes of the proceedings of the Board. Any action by written consent shall have the same force and effect as a unanimous vote of those consenting Directors. Any certificate or other document filed under any provision of the South Carolina Business Corporations Act that relates to action so taken shall state that the action was taken by unanimous written consent of the Board of Directors without a meeting and that these Bylaws authorize the directors to so act, and that statement shall be prima facie evidence of such authority.

 

M.   Adjournment

 

(1) In the absence of a quorum a majority of the Directors may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

(2) Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

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N.    Conduct of Meetings

 

At every meeting of the Board of Directors, if there is such an officer, and if not, the President, or in the President’s absence, a Vice President designated by the President, or in the absence of such designation, a chairman chosen by a majority of the Directors present, shall preside. The Secretary of the corporation shall act as Secretary of the Board of Directors. In case the Secretary shall be absent from any meeting, the chairman may appoint any person to act as Secretary of the meeting.

 

O.    Telephone Meetings

 

Subject to the provisions for notice required by these Bylaws and the South Carolina Business Corporations Act for notice of meetings, Directors may participate in and hold a meeting by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Participation in the meeting shall constitute a presence in person at the meeting, except when a person participates in the meeting for the express purpose of objecting to the transactions of any business on the ground that the meeting is not lawfully called or convened.

 

P.    Compensation

 

Directors shall receive such compensation, if any, for their services as Directors as shall be determined, from time to time by resolution of the Board. Any Director may serve the corporation in any other capacity as an officer, agent, employee, or otherwise and receive compensation therefor.

 

Q.    Indemnification of Directors and Officers

 

(1) In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of this alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer of employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitably merits such indemnity. The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made

 

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either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

(2) Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interest of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

(3) The provisions of this Section shall apply to the estate, executor, administrator, heirs, legatees or devisees of any such present or former Director, officer or employee of the corporation.

 

(4) The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to policy are, in the judgement of the Board, fairly allocated between the corporation and the insured persons.

 

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R.    Insurance on Directors, Officers, or Employees

 

The corporation may purchase and maintain insurance on behalf of any director, officer, employee, or agent of the corporation, or on behalf of any person serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against any liability asserted against that person and incurred by that person in any such capacity or arising out of any such status with regard to the corporation, whether or not the corporation has the power to indemnify that person against liability for any of those acts.

 

ARTICLE IV.

 

OFFICERS

 

A.    Number and Titles

 

The officers of the corporation shall be a President, Vice Presidents, a Secretary, and a Treasurer. The corporation may also have, at the discretion of the Board of Directors, a Chairman of the Board, one or more additional Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions of Article IV, Section C of this Article. One person may hold two or more offices.

 

B.    Election

 

The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Paragraph C of Article IV or Paragraph E of Article IV, shall be chosen annually by the Board of Directors, and each shall hold office until he or she shall resign or shall be removed or otherwise disqualified to serve, or a successor shall be elected and qualified.

 

C.    Subordinate Officers

 

The Board of Directors may appoint such other officers or agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board of Directors may from time to time determine. The Board of Directors may delegate to any officer or committee the power to appoint any subordinate officers, committees, or agents, to specify their duties, and to determine their compensation.

 

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D.    Removal and Resignation

 

Any officer may be removed, either with or without cause, by a majority of the Directors, at any regular or special meeting of the Board, or except in case of an officer chosen by the Board of Directors, by any committee or officer upon whom that power of removal may be conferred by the Board of Directors, provided, however, that the removal shall be without prejudice to the contract rights, if any, of the person removed. Any officer may resign at any time by giving written notice to the Board of Directors, the President, or the Secretary of the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified therein, and, unless otherwise specified therein, the acceptance of that resignation shall not be necessary to make it effective.

 

E.     Vacancies

 

If the office of the President, Vice President, Secretary, Treasurer, Assistant Secretary (if any), or Assistant Treasurer (if any) becomes vacant by reason of death, resignation, removal or otherwise, the Board of Directors shall preside until a successor is elected.

 

F.     Chairman of the Board

 

The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to the Chairman by the Board of Directors or prescribed by the Bylaws.

 

G.    President

 

Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Within this authority and in the course of his duties the President shall be empowered as follows:

 

(1) To preside at all meetings of the shareholders and in the absence of the Chairman of the Board, or, if there is none, at all meetings of the Board of Directors,

 

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and shall be ex officio a member of all the standing committees, including the executive committee, if any.

 

(2) To sign all certificates of shares of the corporation, in conjunction with the Secretary of assistant Secretary, unless otherwise ordered by the Board of Directors. The President’s signatures on the certificates may be facsimile if the certificates are countersigned by a transfer agent or registered by a registrar, neither of which is the corporation itself or any employee of the corporation.

 

(3) When authorized by the Board of Directors or required by law, to execute, in the name of the corporation deeds, conveyances, notices, leases, checks, drafts, bills of exchange, warrants, promissory notes, bonds, debentures, contracts, and other papers and instruments in writing, and, unless the Board of Directors shall order otherwise by resolution, make such contracts as the ordinary conduct of the corporation’s business may require.

 

(4) To appoint and remove, employ and discharge, and prescribe the duties and fix the compensation of all agents, employees, and clerks of the corporation other than the duly appointed officers, subject to the approval of the Board of Directors, and control, subject to the direction of the Board of Directors, all of the officers, agents, and employees of the corporation.

 

(5) Unless otherwise directed by the Board of Directors, to attend all meetings of the shareholders of any corporation in which this corporation holds stock, and act and vote on behalf of the corporation at those meetings. The President may attend in person or by substitute appointed by the President or Vice President and the Secretary and Assistant Secretary.

 

H.    Vice President

 

In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws.

 

16


 

I.              Secretary

 

The Secretary shall be empowered as follows:

 

(1) To sign, with the President or Vice President, certificates for shares in the corporation. An Assistant Secretary may sign the certificates instead of the Secretary. The Secretary’s signature on the certificates may be facsimile if the certificates are countersigned by a transfer agent or registered by a registrar, neither of which is the corporation itself or any employee of the corporation.

 

(2) To attest and keep at the principal office of the corporation the original or a copy of these Bylaws as amended or otherwise altered to date.

 

(3) To keep the original or a copy of the Articles of Incorporation, certified by the Secretary of State, with all amendments thereof to date in the minute book.

 

(4) To keep at the principal office of the corporation or such other place as the Board of Directors may order, a book of minutes of all meetings of its Directors and shareholders, executive committee, and other committees. The minutes shall show the time and place of the meeting, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at director’s meetings, the number of shares or members present or represented at shareholders’ meetings, and the proceedings thereof.

 

(5) To see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law. In case of the absence of disability of the Secretary, or the Secretary’s refusal or neglect to act, notice may be given and served by an Assistant Secretary or by the President or Vice President or by the Board of Directors.

 

(6) To be custodian of the records and of the seal of the corporation and see that it is engraved, lithographed, printed, stamped, impressed upon, or affixed to all certificates for shares prior to their issuance and to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these Bylaws.

 

17


 

(7) To sign or attest any documents as required by law or the business of the corporation and affix the corporate seal to instruments when necessary or proper.

 

(8) To keep at the principal office of the corporation a share register or duplicate share register showing the names of the shareholders and their addresses; the number, date of issue, and class of shares represented by each outstanding share certificate; and the number and date of cancellation of each certificate surrendered for cancellation.

 

(9) To see that the books, reports, statements, certificates, and all other documents and records required by law are properly kept and filed.

 

(10) To exhibit at all reasonable times to any Director, on written demand stating the purpose thereof of any person who has been a shareholder of record for at least six months immediately preceding the demand or who is the holder of record of at least five percent (5.0%) of all of the outstanding shares of the corporation, the bylaws, the share register, and minutes of proceedings of the shareholders and Directors of the corporation.

 

(11) In general, to perform all duties incident to the office of Secretary, and such other duties as from time to time may be assigned to him or her by the Board of Directors.

 

(12) In case of the absence or disability of the Secretary or the Secretary’s refusal or neglect to act, the Assistant Secretary, or if there be none, the Treasurer, acting as Assistant Secretary, may perform all of the functions of the Secretary. In the absence or inability to act, or refusal or neglect to act of the Secretary, Assistant Secretary, and Treasurer, any person thereunto authorized by the President or Vice President or by the Board of Directors may perform the functions of the Secretary.

 

J.     Assistant Secretary

 

At the request of the Secretary, or in the Secretary’s absence or disability, the Assistant Secretary shall perform all the duties of the Secretary, and when so acting, the Assistant Secretary shall have all the powers of, and be subject to all the restrictions on, the Secretary. The Assistant Secretary shall perform such other duties as from time to time may be assigned to him or her by the Board of Directors or the Secretary.

 

18


 

K.    Treasurer

 

The Treasurer shall be empowered as follows:

 

(1) To have charge and custody of, and be responsible for, all funds and securities of the corporation, and deposit all funds in the name of the corporation in those banks, trust companies, or other depositaries that shall be selected by the Board of Directors.

 

(2) To receive, and give receipt for, moneys due and payable to the corporation from any source whatever.

 

(3) To disburse or cause to be disbursed the funds of the corporation as may be directed by the Board of Directors, taking proper vouchers for those disbursements.

 

(4) To keep and maintain adequate and correct accounts of the corporation’s properties and business transactions including account of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus, and shares. Any surplus, including earned surplus, paid-in surplus, and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account.

 

(5) To exhibit at all reasonable times the books of account and records to any Director on application, or to any person who has been a shareholder of record for at least six (6) months immediately preceding his demand or who is the holder of record of at least five percent (5.0%) of all the outstanding shares of the corporation, on written demand stating the purpose thereof, during business hours at the office of the corporation where such books and records are kept.

 

(6) To render to the President and Directors, whenever they request it, an account of all his or her transactions as Treasurer and of the financial condition of the corporation.

 

(7) To prepare, or cause to be prepared, and certify the financial statements to be included in the annual report to shareholders and statements of the affairs of the corporation when requested by shareholders holding at least 10 percent of the number of outstanding shares of the corporation.

 

19


 

(8) If required by the Board of Directors or the President, to give to the corporation a bond to assure the faithful performance of the duties of the Treasurer’s office and the restoration to the corporation of all corporate books, papers, vouchers, money, and the property of whatever kind in the Treasurer’s possession or control, in case of the Treasurer’s death, resignation, retirement or removal from office. Such a bond must be in the sum satisfactory to the Board of Directors with one or more sureties or a surety company satisfactory to the Board of Directors.

 

(9) In general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to the Treasurer by the Board of Directors.

 

(10) In case of the absence or disability of the Treasurer or the Treasurer’s refusal or neglect to act, the Assistant Treasurer or the Secretary acting as Assistant Treasurer may perform all of the functions of the Treasurer. In the absence or inability to act, or refusal or neglect to act, of the Treasurer, the Assistant Treasurer, and the Secretary, any person thereunto authorized by the President or Vice President or by the Board of Directors may perform the functions of the Treasurer.

 

L.    Assistant Treasurer

 

The Assistant Treasurer, if required to do so by the Board of Directors, shall give bond for the faithful discharge of the duties of the Assistant Treasurer, in such sum, and with such sureties as the Board of Directors shall require. At the request of the Treasurer, or in the Treasurer’s absence or disability, the Assistant Treasurer designated as set forth in precedent Article IV, Section K(10) of these Bylaws shall perform all the duties of the Treasurer, and when so acting, shall have all the powers of, and be subject to all the restrictions on, the Treasurer. The Assistant Treasurer shall perform such other duties as from time to time may be assigned to him or her by the Board of Directors or the Treasurer.

 

M.   Salaries

 

The salaries of the officers shall be fixed from time to time by the Board of Directors, and no officer shall be prevented from receiving a salary by reason of the fact that the officer is also a Director of the corporation.

 

20

 

ARTICLE V.

 

EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

A.    Authority for Execution of Instruments

 

The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and that authority my be general or confined to specific instances, and, unless so authorized, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.

 

B.    Execution of Instruments

 

Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, other corporate instruments or documents, and certificates of shares of stock owned by the corporation shall be executed, signed, or endorsed by the President or any Vice President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal affixed thereto.

 

C.    Bank Accounts and Deposits

 

(1) All funds of the corporation shall be deposited from time to time to the credit of the corporation with such banks, trust companies, or other depositaries as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the corporation to whom that power may be delegated from time to time by the Board of Directors.

 

(2) Endorsements for deposit to the credit of the corporation in any of its duly authorized depositaries may be made without countersignatures by the President or any Vice President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the corporation to whom the Board of Directors, by resolution, shall have delegated that power, or by hand stamped impression in the name of the corporation.

 

(3) All checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation,

 

21


 

shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors.

 

ARTICLE VI.

 

ISSUANCE AND TRANSFER OF SHARES

 

A.    Classes and Series of Shares

 

The corporation may issue one or more classes or series of shares, or both, any of which classes or series may be with par value or without par value and with full, limited, or no voting rights, and with such other preferences, rights, privileges, and restrictions as are stated or authorized in the Articles of Incorporation. All shares of any one class shall have the same voting rights, conversion, redemption, and other rights, preferences, privileges, and restrictions, unless the class is divided into series. If a class is divided into series, all the shares of any one series shall have the same voting rights, conversion, redemption, and other rights, preferences, privileges, and restrictions. There shall always be a class or series of shares outstanding that has complete voting rights except as limited or restricted by voting rights conferred on some other class or series of outstanding shares.

 

B.    Certificates for Fully Paid Shares

 

Neither shares not certificates representing shares may be issued by the corporation until the full amount of the consideration has been paid. When the consideration has been paid to the corporation, the shares shall be deemed to have been issued and the certificate representing the shares shall be issued to the shareholder.

 

C.    Consideration for Shares

 

The consideration paid for the issuance of shares shall consist of money paid, labor done, or property actually received, and neither promissory notes, nor the promise of future services shall constitute payment or part payment for shares of the corporation.

 

D.    Compliance with Corporate Securities Law

 

The corporation shall not sell or offer to sell any security issued by it, whether or not through underwriters, until that offer or sale has been qualified by the South Carolina Securities Commissioner as required by the South Carolina Securities Act and the rules and regulations of the Commissioner, unless the security or transaction is exempted from qualification

 

22


 

and the applicable statutes and rules and regulations have been complied with.

 

E.     Signing Certificates—Facsimile Signatures

 

All share certificates shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary. The signatures of the President or Vice President, Secretary or Assistant Secretary may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar either of which is not the corporation itself or an employee of the corporation. If the officer who has signed or whose facsimile signature has been placed on the certificate has ceased to be such officer before the certificate is issued, the certificate may be issued by the corporation with the same effects as if he or she were such officer on the date of its issuance.

 

F.     Options—Authority to Adopt

 

(1) The corporation may, if so determined by the Board, and subject to any restrictions or limitations in the Articles of Incorporation, grant options to purchase shares of any class or series on such terms and conditions as the Board may deem expedient. Options may be issued in connection with the issue, subscription, or sale of any of its shares, bonds, debentures, notes, or other securities, or independently thereof. Option rights may be transferable or nontransferable and separable or inseparable from other securities of the corporation, as determined by the Board.

 

(2) The option must set forth the terms on which, the time or times within which, and price or prices at which the option shares may be purchased from the corporation on exercise of the option.

 

G.    Lost or Destroyed Shares

 

(1) When a share certificate has been lost, apparently destroyed, or wrongfully taken and the owner fails to notify the corporation of that fact within a reasonable time after noticing it, and the corporation registers a transfer of the share represented by the certificate before receiving such a notification, the owner is precluded from asserting against the corporation any claim for registering the transfer or any claim to a new certificate.

 

(2) When the holder of a share certificate claims that the certificate has been lost, destroyed, or wrongfully taken, the corporation shall issue a new

 

23


 

certificate in place of the original certificate if the owner (a) requests a new certificate before the corporation has notice that the share has been acquired by a bona fide purchaser, (b) files with the corporation a sufficient indemnity bond, and (c) satisfies any other reasonable requirements imposed by the Board of Directors.

 

(3) If, after the issue of a new certificate as a replacement for a lost, destroyed, or wrongfully taken certificate, a bona fide purchaser of the original certificate presents it for registration of transfer, the corporation must register the transfer unless registration would result in overissue. If the registration of transfer would result in overissue, the corporation shall, on request of the bona fide purchaser, purchase and deliver an identical security to that purchaser against surrender of the certificate, if an identical security is reasonably available. If an identical security is not reasonably available, the corporation must, on request of the bona fide purchaser, pay to that purchaser the price paid for the security, with interest from the date of demand. In addition to any rights on the indemnity bond, the corporation may recover the new security from the person to whom it was issued or any person taken under him except a bona fide purchaser.

 

H.    Transfer Agents and Registrars

 

The Board of Directors may appoint one or more transfer agents or transfer clerks, and one or more registrars, at such times and place as the requirements of the corporation may necessitate and the Board of Directors may designate. The registrar shall be an incorporated bank or trust company, either domestic or foreign.

 

I.      Conditions of Transfer

 

A person in whose name shares of stock stand on the books of the corporation shall be deemed the owner thereof as regards the corporation, provided that whenever any transfer of shares shall be made for collateral security, and not absolutely, and written notice thereof shall be given to the Secretary of the corporation or its transfer agent, if any, such fact shall be stated in the entry of the transfer.

 

J.     Reasonable Doubts as to Right to Transfer

 

When a transfer of shares is requested and there is reasonable doubt as to the right of the person seeking the

 

24


 

transfer, the corporation or its transfer agent, before recording the transfer of the shares on its books or issuing any certificate therefor, may require from the person seeking the transfer reasonable proof of that person’s right to the transfer. If there remains a reasonable doubt of the right to the transfer, the corporation may refuse a transfer unless the person gives adequate security or a bond of indemnity executed by a corporate surety or by two individual sureties satisfactory to the corporation as to form, amount, and responsibility of sureties. The board shall be conditioned to protect the corporation, its officers, transfer agents, and registrars, or any of them, against any loss, damage, expense, or other liability to the owner of the shares by reason of the recordation of the transfer or the issuance of a new certificate for shares.

 

ARTICLE VII.

 

CORPORATE RECORDS, REPORTS, AND SEAL

 

A.    Minutes of Corporate Meetings

 

The corporation shall keep at the office of the attorney for the corporation, or such other place as the Board of Directors may order, a book of minutes of all meetings of its Directors and of its shareholders or members, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares or members present or represented at shareholders or members’ meetings, and the proceedings thereof.

 

B.    Books of Account

 

The corporation shall keep and maintain adequate and correct accounts of its properties and business transactions, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus, and shares. Any surplus including earned surplus, paid-in surplus, and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account.

 

C.    Share Register

 

The corporation for profit shall keep at the office of the attorney for the corporation, or at the office of the transfer agent, a share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for shares, and the number and date of cancellation of every certificate surrendered for cancellation. The above specified information may be kept by the corporation on an information storage device such as electronic data processing equipment provided that the equipment is capable of

 

25


 

reproducing the information in clearly legible form for the purposes of inspection as provided in Section D, Article VII of these Bylaws.

 

D.    Inspection of Records by Shareholders

 

(1) Any person who shall have been a shareholder of record for at least six (6) months immediately proceeding that person’s demand to inspect the corporate records, or who is the holder of record of at least five percent (5.0%) of all of the outstanding shares of the corporation, on written demand stating the purpose thereof, has the right to examine, in person, or by agent, accountant, or attorney, at any reasonable time or times, for any proper purpose, its books and records of account, minutes, and record of shareholders, and is entitled to make extracts therefrom.

 

(2) Every Director shall have the absolute right at any reasonable time to inspect all books, records, documents and every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such inspection by a Director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts.

 

E.     Fiscal Year

 

The fiscal year of the corporation shall be as determined by the Board of Directors.

 

F.     Corporate Seal

 

The Board of Directors may adopt, use, and thereafter alter the corporate seal.

 

ARTICLE VIII.

 

AMENDMENT OF BYLAWS

 

A.    Adoption, Amendment, Repeal of Bylaws of Directors

 

Bylaws may be altered, amended, or repealed, and new bylaws may be adopted, by the Directors, subject to repeal or change by action of the shareholders.

 

26


 

ACKNOWLEDGED AND ADOPTED effective March 1, 1993.

 

 

 

/s/ Mike Carroll

 

Mike Carroll

 

 

 

 

 

/s/ Bob Johnson

 

Bob Johnson

 

 

 

 

 

/s/ Jim Riscigno

 

Jim Riscigno

 

27


 EX-3.95(A) 190 a2202241zex-3_95a.htm EX-3.95(A)

Exhibit 3.95(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

HEARTHSTONE COUNTRY CLUB, INC.

 

Hearthstone Country Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Hearthstone Country Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF HEARTHSTONE COUNTRY CLUB, INC.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Hearthstone Country Club, Inc.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Hearthstone Country Club, in the City of Houston, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Hearthstone Country Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

HEARTHSTONE COUNTRY CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

HEARTHSTONE COUNTRY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Hearthstone Country Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Hearthstone Country Club, in the City of Houston, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E.7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

2


 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.95(B) 191 a2202241zex-3_95b.htm EX-3.95(B)

Exhibit 3.95(b)

 

AMENDED AND RESTATED BYLAWS

OF

HEARTHSTONE COUNTRY CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice

 


 

Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties:

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation

 


 

with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered

 


 

Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.96(A) 192 a2202241zex-3_96a.htm EX-3.96(A)

Exhibit 3.96(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

HILL COUNTRY GOLF, INC.

 

Hill Country Golf, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Hill Country Golf, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF HILL COUNTRY GOLF, INC.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Hill Country Golf, Inc.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Lost Creek Country Club, in the City of Austin, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

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6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Hill Country Golf, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

HILL COUNTRY GOLF, INC.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

HILL COUNTRY GOLF, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Hill Country Golf, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Lost Creek Country Club, in the City of Austin, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

2


 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

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 EX-3.96(B) 193 a2202241zex-3_96b.htm EX-3.96(B)

Exhibit 3.96(b)

 

AMENDED AND RESTATED BYLAWS
OF
HILL COUNTRY GOLF, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice

 


 

Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation

 


 

with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered

 


 

Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.97(A) 194 a2202241zex-3_97a.htm EX-3.97(A)

Exhibit 3.97(a)

 

 

 

ARTICLES OF INCORPORATION

 

FILED
In the Office of the
Secretary of State of Texas

 

 

 

 

 

 

 

OF

 

SEP 02 1999

 

 

 

 

 

 

 

HILLS II OF LAKEWAY, INC.

 

Corporations Section

 

I, the undersigned, natural person of the age of eighteen (18) years or more, being a citizen of the State of Texas, do hereby adopt the following Articles of Incorporation pursuant to the Texas Business Corporation Act:

 

ARTICLE I.

 

NAME

 

The name of the Corporation is “Hills II of Lakeway, Inc.”

 

ARTICLE II.

 

DURATION

 

The period of duration of the Corporation is perpetual

 

ARTICLE III.

 

The purposes for which this corporation is organized are:

 

A. To perform services;

 

B. To do everything necessary, proper, advisable or convenient for the accomplishment, or furtherance of any and all acts legally allowable under the laws of the State of Texas.

 

C. The Corporation shall also possess the power to purchase or otherwise acquire, hold, own, operate, develop, subdivide, lease, mortgage, sell, convey, pledge, transfer or otherwise dispose of, and to invest, trade or deal in, directly or indirectly, real and personal property of every class and description in any of the states, districts, territories or colonies of the United

 

1


 

States, and in any district, territory, colony or country; provided, however, that the Corporation shall not own or purchase property or transact business which is prohibited by any laws of the State of Texas.

 

ARTICLE IV.

 

The aggregate number of shares which the corporation shall have authority to issue is 1,000 shares, having $1.00 par value per share.

 

ARTICLE V.

 

No holder of any capital stock of the Corporation shall be entitled to have any preemptive or preferential right to purchase or subscribe for any part of any capital stock of the corporation authorized by this Certificate or of any additional capital stock of any class to be issued by reason of any issuance or increase of the authorized stock of the Corporation, or issuance of any bonds, certificates or indebtedness, debentures, warrants, options or other securities convertible into any class of capital stock of the Corporation, but any capital stock authorized by this Certificate or any such additional authorized issue of any capital stock or securities convertible into any capital stock may be issued and disposed of by the Board of Directors of the Corporation to such persons, firms, corporations or associations for such consideration and upon such terms and in such manner as the Board of Directors of the Corporation may, in its discretion, determine without offering any thereof on the same terms, or on any terms to the shareholders then of record or to any class of shareholders; provided, however, that such issuance may not be inconsistent with any provision of law or with any of the provisions of this Certificate.

 

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ARTICLE VI.

 

At each election of directors, every shareholder entitled to vote at such election shall have the right to vote, in person or by proxy, the number of shares owned by that shareholder for as many persons as there are directors to be elected and for whose election such shareholder has a right to vote. Cumulative voting is expressly prohibited.

 

ARTICLE VII.

 

No contract or transaction between the Corporation and one or more of Its directors or officers, or between any corporation, partnership, association or other organization in which one or more of the directors or officers of the Corporation are directors, officers or partners, or have a financial interest, shall be void or voidable solely by reason of such relationship, or solely because the director or officer is present at or participates in the meeting of the Board of Directors of the Corporation or committee thereof that authorizes the contract or transaction, or solely because its or their votes are counted for such purposes, if any one of the following conditions are met, unless otherwise provided for by law:

 

A. The material facts concerning the relationship or Interest of the director or officer and the material facts concerning the contract or transaction are disclosed or are known to the Board of Directors of the Corporation or the committee thereof that authorizes the contract or transaction, and the Board of Directors of the Corporation or committee thereof in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or

 

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B. The material facts concerning the relationship or interest of the director or officer and the material facts concerning the contract or transaction are disclosed or are known to the shareholders of the Corporation entitled to vote thereon, and the contract or transaction is specifically approved in good faith by the shareholders of the Corporation at any annual or special meeting of shareholders called for that purpose; or

 

C. The contract or transaction is fair to the Corporation at the time it is authorized, approved or ratified by the Board of Directors of the Corporation, a committee thereof, or the shareholders of the Corporation.

 

Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors of the Corporation or of a committee thereof that authorizes such contract or transaction.

 

ARTICLE VIII.

 

Each person who is or was a director, officer, agent or employee of the Corporation and each person who serves or served at the Corporation’s request as director, officer, agent, employee, partner or trustee of another Corporation, or of a partnership, joint venture, trust or other enterprise shall be indemnified by the Corporation against any expenses (including attorney’s fees), amounts paid in settlement, judgments and fines incurred by such person in connection with any action, suit or proceeding to which such person may be a party by reason of such person’s position with the Corporation or service on behalf of the Corporation to the full extent (i) provided under any by-law or agreement of the Corporation, or (ii) otherwise permitted by law; provided, however, that said indemnification shall not be

 

4


 

afforded if the Corporation, in its discretion, finds said party at fault in such settlement, judgment, or fine, etc.

 

ARTICLE IX.

 

The corporation will not commence business until it has received for the issuance of its shares, consideration of the value of ONE THOUSAND AND NO/100 DOLLARS ($ 1,000.00), consisting of money, labor done, or property actually received.

 

ARTICLE X.

 

The street address of this Corporation’s initial registered office is One Commodore Plaza, 800 Brazos, Austin, Texas 78701-2507. The name of its resident agent at that address is Corporation Service Company. The street address of this corporation’s principal office is 3030 LBJ Freeway, Dallas, Texas 75234.

 

ARTICLE XI.

 

The number of directors constituting the initial Board of Directors is two (2) and the names and addresses of the persons who are to serve as directors until the first annual meeting of the shareholders, or until their successors are elected and qualified are as follows:

 

Name:

Mark Dietz

 

 

Mailing Address:

TriWest Plaza

 

3030 LBJ Freeway

 

Dallas, Texas 75234

 

 

 

 

Name:

Jack Lupton

Mailing Address:

TriWest Plaza

 

3030 LBJ Freeway

 

Dallas, Texas 75234

 

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ARTICLE XII.

 

The name and mailing address of the incorporator of this Corporation is as follows:

 

Name:

Thomas T. Henslee

 

 

Mailing Address:

TriWest Plaza

 

3030 LBJ Freeway, Suite 840

 

Dallas, Texas 75234

 

IN WITNESS WHEREOF, I have hereunto set my hand this 1st day of September, 1999.

 

 

 

By:

/s/ Thomas T. Henslee

 

 

Thomas T. Henslee

 

 

 

 

THE STATE OF TEXAS

§

 

 

§

 

COUNTY OF DALLAS

§

 

 

BEFORE ME, the undersigned authority, a Notary Public in and for Dallas County, Texas on this 1st day of September, 1999, personally appeared Thomas T. Henslee who, after being by me duly sworn, declared that he was the person who signed the foregoing document as incorporator and that the statements contained therein are true.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1st day of September, 1999.

 

 

/s/ Shannon Bowman Drissel

 

Notary Public, State of Texas

 

 

 

[Notary Public Seal]

 

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 EX-3.97(B) 195 a2202241zex-3_97b.htm EX-3.97(B)

Exhibit 3.97(b)

 

AMENDED AND RESTATED

 

BYLAWS

 

OF

 

HILLS II OF LAKEWAY, INC.

 

Adopted November 3, 2010

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the President or the Board of Directors, and shall be called by the President or the Secretary at the request in writing of the holders of not less than ten percent (10%) of the voting power represented by all the shares issued, outstanding and entitled to be voted at the proposed special meeting, unless the certificate of formation provides for a different percentage, in which event such provision of the Certificate of Formation shall govern, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of formation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 


 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of formation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to its direct or indirect subsidiary (as such term is defined in the Texas Business Organizations Code (the “Code”), shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of formation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after eleven (11) months from its date of execution, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a

 

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quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of formation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the share transfer records shall prepare and make, not later than the eleventh (11th) day before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number and type of shares registered in the name of each shareholder and the number of votes that each shareholder is entitled to, if different than

 

3


 

the number of shares. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the registered office or principal place of business of the corporation. If the corporation elects to make the list available on an electronic network, the corporation shall take reasonable steps to ensure that the information is available only to shareholders of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the share transfer records shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. If permitted by the certificate of formation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation in accordance with the Code. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be

 

4


 

required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of formation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified; provided, that during the period between any two successive annual meetings of shareholders, the Board of Directors may not fill more than two vacancies created by an increase in the number of directors.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of formation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President (if the President is a director), or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of formation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if a written consent, setting forth the action so taken, is signed by all members of the Board of Directors or such committee, as the case may be, and the writing or writings are filed with the minutes of proceedings of the board or committee in accordance with applicable law. Any photographic, photostatic, facsimile, or similarly reliable reproduction of a consent in writing signed by a director may be substituted or used instead of the original writing for any purpose for which the original writing could be used, if the reproduction is a complete reproduction of the entire original writing. An electronic transmission of a consent by a director is considered a signed writing if the transmission contains or is accompanied by information from which it can be determined (a) that the electronic transmission was transmitted by the director and (b) the date on which the director transmitted the electronic transmission.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

8


 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board or the Vice Chairperson of the Board, if any, or the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly

 

9


 

by the Chairperson or the Vice Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

11


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an affirmation and an undertaking by the Covered Person of the kinds described in Section 8.104(a) of the Code.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of formation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

12


 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

13


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission to which each director has consented (including the form of electronic transmission to be used).

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its share transfer records, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 

[end]

 

14


 EX-3.98(A) 196 a2202241zex-3_98a.htm EX-3.98(A)

Exhibit 3.98(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

HOUSTON CITY CLUB, INC.

 

Houston City Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Houston City Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF HOUSTON CITY CLUB, INC.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation Houston City Club, Inc.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Houston City Club (the “Business”);

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Houston City Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

HOUSTON CITY CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

HOUSTON CITY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Houston City Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Houston City Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

2


 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.98(B) 197 a2202241zex-3_98b.htm EX-3.98(B)

Exhibit 3.98(b)

 

AMENDED AND RESTATED BYLAWS

OF

HOUSTON CITY CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.99(A) 198 a2202241zex-3_99a.htm EX-3.99(A)

Exhibit 3.99(a)

 

 

FILED

 

94 MAY 13 PM 3:42

 

SECRETARY OF STATE

 

TALLAHASSEE, FLORIDA

 

ARTICLES OF AMENDMENT
TO
ARTICLES OF ORGANIZATION

 

Pursuant to the provision of section 608.411, [Illegible] Statutes, the undersigned limited liability company adopts they following articles of amendment to its articles of organization and swears to the following:

 

FIRST:        The name of the limited liability company in HPG, L.C.

 

SECOND:   The following amendment to the articles of organization was adopted by the limited liability company:

 

Article VIII is amended to read as follows:

 

ARTICLE VIII
MANAGEMENT

 

The LLC shall be managed by M-Golf, Inc., whose address is 5200 Newberry Road, Suite E-9, Gainesville, FL 32605.

 

THIRD:       The amendment was adopted by the members of the limited liability company on the 20th day of September, 1993. The date of filing of the articles of organization was December 15, 1992.

 

Dated: January 26, 1994

 

 

SIGNATURES OF ALL MEMBERS

 

 

 

/s/ Gary Player

 

GARY PLAYER

 

 

 

/s/ Wayne Millar

 

WAYNE MILLAR

 

 

 

HG JOINT VENTURE, a Florida

 

joint venture

 

 

 

BY:

HAILE PLANTATION CORP.

 

 

 

BY:

/s/ Illegible

 

As Its President

 

 

 

BY:

BGR OF HAILE, INC.

 

 

 

BY:

/s/ Robert R. Rowe

 

As Its President

 

 

 

/s/ Robert R. Rowe

 

ROBERT R. ROWE

 

 

 

/s/ Charles L. Blount

 

CHARLES L. BLOUNT

 


 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

Before me, the undersigned authority personally appeared. GARY PLAYER, to me well known to be the persons who executed the foregoing articles of amendment to articles of organization and acknowledge before me, according to law, that they made and subscribed the same for the purposes therein mentioned and set forth.

 

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of January, 1994.

 

 

/s/ Linda Wilkinson Turner

 

Print Name:                                                                         

(SEAL) [Notary Public Seal]

Notary Public, State of                     

 

at Large.

 

My Commission Expires:

 

Serial Number, if any:                               

 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

Before me, the undersigned authority personally appeared WAYNE MILLAR, to me well known to be the persons who executed the foregoing articles of amendment to articles of organization and acknowledge before me, according to law, that they made and subscribed the same for the purposes therein mentioned and set forth.

 

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of January, 1994.

 

 

/s/ Linda Wilkinson Turner

 

Print Name:                                                                         

(SEAL) [Notary Public Seal]

Notary Public, State of                     

 

at Large.

 

My Commission Expires:

 

Serial Number, if any:                               

 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

Before me, the undersigned authority personally appeared Robert Kramer as President of HAILE PLANTATION CORPORATION, a Florida corporation, a venturer in HG JOINT VENTURE, a Florida joint venture, to me well known to be the persons who executed the foregoing articles of amendment to articles of organization and acknowledge before me, according to law, that they made and subscribed the same for the purposes therein mentioned and set forth.

 

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of January, 1994.

 

 

/s/ Linda Wilkinson Turner

 

Print Name:                                                                         

(SEAL) [Notary Public Seal]

Notary Public, State of                     

 

at Large.

 

My Commission Expires:

 

Serial Number, if any:                               

 


 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

Before me, the undersigned authority personally appeared Robert R. Rowe as President BGR OF HAILE, INC., a Florida corporation, a venturer in HG JOINT VENTURE, a Florida joint venture, to me well known to be the persons who executed the foregoing articles of amendment to articles of organization and acknowledge before me, according to law, that they made and subscribed the same for the purposes therein mentioned and set forth.

 

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of January, 1994.

 

 

/s/ Linda Wilkinson Turner

 

Print Name:                                                                         

(SEAL) [Notary Public Seal]

Notary Public, State of                     

 

at Large.

 

My Commission Expires:

 

 

 

Serial Number, if any:                               

 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

Before me, the undersigned authority personally appeared ROBERT R. ROWE, to me well known to be the persons who executed the foregoing articles of amendment to articles of organization and acknowledge before me, according to law, that they made and subscribed the same for the purposes therein mentioned and set forth.

 

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of January, 1994.

 

 

/s/ Linda Wilkinson Turner

 

Print Name:                                                                         

(SEAL) [Notary Public Seal]

Notary Public, State of                     

 

at Large.

 

My Commission Expires:

 

 

 

Serial Number, if any:                               

 


 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

Before me, the undersigned authority personally appeared CHARLES L. BLOUNT, to me well known to be the persons who executed the foregoing articles of amendment to articles of organization and acknowledge before me, according to law, that they made and subscribed the same for the purpose therein mentioned and set forth.

 

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of January, 1994.

 

 

/s/ Linda Wilkinson Turner

 

Print Name:                                                

(SEAL) [Notary Public Seal]

Notary Public, State of                                             

 

at Large.

 

My Commission Expires:

 

 

 

Serial Number, if any:                                 

 


 

 

FILED

 

1992 DEC 15 PM 1:50

 

SECRETARY OF STATE

 

TALLAHASSEE, FLORIDA

 

ARTICLES OF ORGANIZATION

 

OF

 

HPG, L.C.

 

AGREEMENT made as of the 24th day of November, 1992, by and among GARY PLAYER, WAYNE MILLAR, MG JOINT VENTURE, a Florida joint venture, ROBERT R. ROWE and CHARLES L. BLOUNT (hereinafter the Members or individually the Member);

 

NOW THEREFORE, it is mutually agreed as follows:

 

ARTICLE I

 

FORMATION OF LIMITED LIABILITY COMPANY

 

The Members hereby creat a limited liability company (the “LLC”) under F.S. 608 of the laws of the State of Florida (the “Act”) for the purposes described in Article 3 below.

 

ARTICLE II

 

NAME

 

The name of the LLC shall be HPG, L.C., or such other name selected by the Members as may be acceptable to the appropriate recording official of the State of Florida.

 

ARTICLE III

 

PURPOSES AND POWERS

 

The general nature of the business or businesses to be transacted and which the LLC is authorized to transact, in

 

1


 

addition to those authorised by the laws of the State of Florida, and the powers of the LLC, shall be as follows:

 

1.         To engage in any activity or business authorized under the Florida Statutes.

 

2.         In general, to carry on any and all incidental business; to have and exercise all the powers conferred by the laws of the State of Florida, and to do any and all things herein set forth to the same extent as a natural person might or could do.

 

3.         To purchase or otherwise acquire, undertake, carry on, improve, or develop, all or any of the business, good will, rights, assets, and liabilities of any person, firm, association, or corporation carrying on any kind of business of a similar nature to that which this limited liability company is authorized to carry on, pursuant to the provisions of the Articles; and to hold, utilize, and in any manner dispose of the rights and property so acquired.

 

4.         To enter into and make all necessary contracts for its business with any person, entity, partnership, association, corporation, domestic or foreign, or of any domestic or foreign state, government, or governmental authority, or of any political or administrative subdivision, or department thereof, and to

 

2


 

perform and carry out, assign, cancel, or rescind any of such contracts.

 

5.         To exercise all or any of the LLC powers, and to carry out all or any of the purposes, enumerated herein otherwise granted or permitted by law, while acting as agent, nominee, or attorney-in-fact for any persons or corporations, and perform any service under contract or otherwise for any corporation, joint stock company, association, partnership, firm, syndicate, individual, or other entity, and in such capacity or under such arrangement, develop, improve, stabilize, strengthen, or extend the property and commercial interest thereof, and to aid, assist, or participate in any lawful enterprise in connection therewith or incidental to such agency, representation, or service, and to render any other service or assistance insofar as it lawfully may under the laws of the State of Florida, providing for the formation, rights, privileges, and immunities of limited liability companies for profit.

 

6.         To do everything necessary, proper, advisable, or convenient for the accomplishment of any of the purposes, or the attainment of any of the objects, or the furtherance of any of the powers herein set forth, either alone or in association with others incidental or pertaining to, or going out of, or connected with its business or powers, provided the same shall not be inconsistent with the laws of the State of Florida.

 

3


 

7.         The several clauses contained in this statement of the general nature of the business or businesses to be transacted shall be construed as both purposes and powers of this LLC, and statements contained in each clause shall, except as otherwise expressed, be in no way limited or restricted by reference to or inference from the terms of any other clause. They shall be regarded as independent purposes and powers.

 

Nothing herein contained shall be deemed or construed as authorizing or permitting, or purporting to authorize or permit the LLC to carry on any business, exercise any power, or do any act which a limited liability company may not, under the laws of the State of Florida, lawfully carry on, exercise, or do.

 

ARTICLE IV

 

PRINCIPAL PLACE OF BUSINESS

 

The business office of the LLC shall be located at 9120 S.W. 46th Boulevard, Gainesville, Florida 32608, or at such other location as may be agreed in writing by the Members.

 

ARTICLE V

 

DURATION

 

This agreement shall become effective on the date hereof, and the LLC shall continue for a period of thirty (30) years from the date hereof, unless sooner terminated by the Members.

 

4


 

ARTICLE VI

 

CAPITAL CONTRIBUTIONS

 

Capital contributions in the amount of FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) cash shall be paid to the LLC by the Members in proportion to their respective percentage interest in the LLC.

 

In addition to the above, the Members shall be required to make such additional capital contributions as are agreed upon by a vote of the majority in interest of the Members of the LLC.

 

ARTICLE VII

 

LIMITED LIABILITY COMPANY POWERS

 

All the LLC powers shall be exercised by or under the authority of, and the business and affairs of this LLC shall be managed under the direction of the Members of this LLC. This article may be amended from time to time in the regulations of the LLC by a unanimous vote of the Members of the LLC.

 

ARTICLE VIII

 

MANAGEMENT

 

Management of this LLC is reserved to the Members, whose names and addresses are as follows:

 

5

 

Name

 

Address

Gary Player

 

c/o International Management Group

 

 

One Erieview Plaza

 

 

Cleveland, Ohio 44114

 

 

 

Wayne Millar

 

5200 Newberry Road, Suite E-9

 

 

Gainesville, FL 32605

 

 

 

HG Joint Venture

 

c/o Robert R. Rowe

 

 

5200 Newberry Road, Suite E-9

 

 

Gainesville, FL 32605

 

 

 

Charles L. Blount

 

423 S.W. 93rd Street

 

 

Gainesville, FL 32607

 

 

 

Robert R. Rowe

 

5200 Newberry Road, Suite E-9

 

 

Gainesville, FL 32605

 

ARTICLE IX

 

INITIAL REGISTERED OFFICE AND REGISTERED AGENT

 

The address of the initial registered office of the LLC is 5200 Newberry Road, Building E-9, City of Gainesville, County of Alachua, State of Florida 32607, and the name of its initial registered agent at such address is ROBERT R. ROWE.

 

ARTICLE X

 

RESTRICTIONS ON MEMBERSHIP

 

Members shall have the right to admit new members by unanimous consent. Contributions required of new members shall be determined as of the time of admission to the LLC.

 

A Member’s interest in the LLC may not be sold or otherwise transferred except as shall be provided in the regulations adopted by the Members.

 

6


 

Upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution of a Member, or the occurrence of any other event that terminates the continued membership of a Member in the LLC, the LLC shall continue unless the Members by majority in interest vote to dissolve the LLC.

 

The undersigned, being the original Members of the LLC, hereby certify that the foregoing constitutes the proposed Articles of Organization of HPG, L.C.

 

Executed by the undersigned at GAINESVILLE, FLORIDA on November 24, 1992.

 

 

/s/ Gary Player

 

GARY PLAYER

 

 

 

/s/ Wayne Millar

 

WAYNE MILLAR

 

 

 

HG JOINT VENTURE, a Florida

 

joint venture

 

 

 

BY:

HAILE PLANTATION CORP.

 

 

 

BY:

/s/ Illegible

 

As Its President

 

 

 

BY: BGR OF HAILE, INC.

 

 

 

BY:

/s/ Robert R. Rowe

 

As Its President

 

 

 

/s/ Robert R. Rowe

 

ROBERT R. ROWE

 

 

 

/s/ Charles L. Blount

 

CHARLES L. BLOUNT

 

7


 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

The foregoing instrument was acknowledged before me this 7th day of December, 1992, by GARY PLAYER. Such person(s):

 

 

o

did take an oath.

 

x

did not take an oath.

 

x

is/are personally known to me.

 

o

produced                                                as identification.

 

 

/s/ Robert R. Rowe

 

Print Name: Robert R. Rowe

(SEAL)

Notary Public, State of Florida

 

at Large.

 

My Commission Expires:[STAMP]

 

 

 

Serial Number, if any:

 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

The foregoing instrument was acknowledged before me this 8th day of December, 1992, by WAYNE MILLAR. Such person(s):

 

 

o

did take an oath.

 

x

did not take an oath.

 

x

is/are personally known to me.

 

o

produced as identification.

 

 

/s/ Robert R. Rowe

 

Print Name: Robert R. Rowe

(SEAL)

Notary Public, State of Florida

 

at Large.

 

My Commission Expires: [STAMP]

 

 

 

Serial Number, if any:

 

8


 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

The foregoing instrument was acknowledge before me this 25th day of November, 1992, by Robert Rramer as President of HAILE PLANTATION CORPORATION, a Florida corporation, a venturer in HG JOINT VENTURE, a Florida joint venture, on behalf of said corporation. Such person(s):

 

 

o

did take an oath.

 

x

did not take an oath.

 

x

is/are personally known to me.

 

o

produced a current Florida Driver’s license as identification.

 

o

produced                                      as identification.

 

 

/s/ DeAnn Larsen

 

Print Name: DeAnn Larsen

(SEAL)

Notary Public, State of Florida

 

at Large.

 

My Commission Expires: [Illegible]

 

 

 

Serial Number, if any: CC129451

 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

The foregoing instrument was acknowledged before me this 27th day of November, 1992, by Robert R. Rowe as President of BGR OF HAILE, INC., a Florida corporation, a venturer in HG JOINT VENTURE, a Florida joint venture, on behalf of said corporation. Such person(s):

 

 

o

did take an oath.

 

x

did not take an oath.

 

x

is/are personally known to me.

 

o

produced a current Florida Driver’s license as identification.

 

o

produced                                      as identification.

 

 

/s/ DeAnn Larsen

 

Print Name: DeAnn Larsen

(SEAL)

Notary Public, State of Florida

 

at Large.

 

My Commission Expires: [Illegible]

 

 

 

Serial Number, if any: CC129451

 

9


 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

The foregoing instrument was acknowledged before me this 25th day of November, 1992, by ROBERT R. ROWE. Such person(s):

 

 

o

did take an oath.

 

x

did not take an oath.

 

x

is/are personally known to me.

 

o

produced a current Florida Driver’s license as identification.

 

o

produced                                      as identification.

 

 

/s/ DeAnn Larsen

 

Print Name: DeAnn Larsen

(SEAL)

Notary Public, State of Florida

 

at Large.

 

My Commission Expires: [Illegible]

 

 

 

Serial Number, if any: CC129451

 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

They foregoing instrument was acknowledged before me this 25th day of November, 1992, by CHARLES L. BLOUNT. Such person(s):

 

 

o

did take an oath.

 

x

did not take an oath.

 

x

is/are personally known to me.

 

o

produced a current Florida Driver’s license as identification.

 

o

produced                                      as identification.

 

 

/s/ DeAnn Larsen

 

Print Name: DeAnn Larsen

(SEAL)

Notary Public, State of Florida

 

at Large.

 

My Commission Expires: [Illegible]

 

 

 

Serial Number, if any: CC129451

 

10


 

 

FILED

 

1992 DEC 15 PM 1:50

 

SECRETARY OF STATE

 

TALLAHASSEE, FLORIDA

 

CERTIFICATE OF REGISTERED AGENT

 

I HEREBY accept designation of registered agent for HPG, L.C., and hereby agree to fulfill the obligations thereof. I hereby am familiar with and accept the duties and responsibilities as registered agent for said corporation.

 

IN WITNESS WHEREOF, I have hereto set my hand and seal this 12th day of December, 1992.

 

 

 

/s/ Robert R. Rowe

 

ROBERT R. ROWE

 

STATE OF FLORIDA

COUNTY OF ALACHUA

 

BEFORE ME personally appeared the following registered agent, ROBERT R. ROWE, to me well known and known to me to be the individual described in and who executed the foregoing Certificate of Registered Agent, and he acknowledged before me that he executed the same for the purposes therein expressed and who did not take an oath.

 

WITNESS my hand and official meal in the County and State above named this 12th day of December, 1992.

 

 

 

/s/ Linda Lee Wilkinson

 

Print Name: Linda Lee Wilkinson

(SEAL)

Notary Public, State of

 

Florida at Large.

 

My Commission Expires: 6-11-93

 

Serial Number: #672244

 


 EX-3.99(B) 199 a2202241zex-3_99b.htm EX-3.99(B)

Exhibit 3.99(b)

 

AMENDED AND RESTATED OPERATING AGREEMENT
FOR
HPG, L.C.

 

This Amended and Restated Operating Agreement (together with the schedules attached hereto, this “Agreement”) of HPG, L.C., a limited liability company organized under the laws of the state of Florida (the “Company”), is entered into this 10th day of November, 2010 by Haile Plantation Management Corp., as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on December 15, 1992, Gary Player (“Player”), Wayne Millar (“Millar”), Charles L. Blount (“Blount”), Robert R. Rowe (“Rowe” and together with Player, Millar and Blount, the “Prior Members”), and HG Joint Venture (“HGJV”) caused an Articles of Organization (the “Articles of Organization”) to be executed and filed with the Secretary of State of the State of Florida in accordance with and pursuant to F.S. 608 of the laws of the State of Florida, as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Operating Agreement dated as of April 10, 1995 by and between the Prior Members, HGJV, and the Member (the “Existing Agreement”).

 

WHEREAS, pursuant to a purchase agreement dated on or about April 10, 1995, by and between HGJV and the Member, the Member purchased from HGJV, all of HGJV’s membership interest in the Company.

 

WHEREAS, on or about April 19, 2001, Blount and Rowe exercised their Put Option (as defined in the Existing Agreement), pursuant to Section 16.1.1 of the Existing Agreement, whereby the Company redeemed all of Blount’s and Rowe’s membership interest in the Company.

 

WHEREAS, on or about March 18, 2005, Player and Millar exercised their Put Option (as defined in the Existing Agreement), pursuant to Section 16.1.2 of the Existing Agreement, whereby the Company redeemed all of Player’s and Millar’s membership interest in the Company, and as a result of the above redemptions, the Member is now the sole equity member of the Company.

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 


 

Section 1.                        Name.

 

The name of the limited liability company continued hereby is HPG, L.C.

 

Section 2.        Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.        Registered Office.

 

The address of the registered office of the Company in the State of Florida is c/o Corporation Service Company, 1201 Hays Street, Tallahassee, Florida 32301-2525.

 

Section 4.        Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Florida is Corporation Service Company, 1201 Hays Street, Tallahassee, Florida 32301-2525.

 

Section 5.        Members.

 

(a)         The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)         The Member may act by written consent.

 

Section 6.        Certificates.

 

The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Articles of Organization as provided in the Act.

 

Section 7.        Purpose.

 

The purpose to be conducted or promoted by the Company is to engage in any lawful business that may be engaged in by a limited liability company organized under the Act.

 

Section 8.        Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to

 

2


 

accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.        Management.

 

(a)        Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

David Woodyard; and

Ingrid Keiser.

 

(b)        Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)        Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Florida. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)        Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)        Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the

 

3


 

meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)         Committees of Directors.

 

(i)                       The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                    In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                 Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)        Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)        Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)         Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company.

 

4


 

Section 10.      Officers.

 

(a)      Officers. The Officers of the Company shall be designated by the Member. The additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt

 

President;

Curt McClellan

 

Treasurer; and

Ingrid Keiser

 

Secretary.

 

(b)      President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)      Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)      Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant

 

5


 

Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)      Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)       Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)      Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Florida.

 

Section 11.      Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 12.      Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.      Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the

 

6


 

Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 14.      Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.      Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate the Act or any other applicable law.

 

Section 16.      Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.      Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.      Exculpation and Indemnification.

 

(a)      Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person

 

7


 

shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)      To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)      To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)      A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)      To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)       The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.      Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the

 

8

 

Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.            Resignation.

 

The Member may resign at any time.

 

Section 21.    Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 22.    Dissolution.

 

(a)    The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

9


 

(b)    Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)    In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)    The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.    Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the Member in the Company is personal property.

 

Section 24.    Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.    Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 26.    Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

10


 

Section 27.    Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 28.    Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Florida (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 29.    Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 30.    Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 31.    Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th of November, 2010.

 

 

MEMBER:

 

 

 

 

 

HAILE PLANTATION MANAGEMENT CORP.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

 

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the A&R LLC Agreement — HPG, L.C.

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Operating Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Florida on December 15, 1992, as amended or amended and restated from time to time.

 

“Company” means HPG, L.C., a Florida limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of the Act.

 

“Member” means Haile Plantation Management Corp, a Florida corporation, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

Haile Plantation
Management Corp.

 

Haile Plantation Management Corp.

c/o ClubCorp, Inc.

3030 LBJ Freeway, Suite 600

Dallas, TX 75234-7703

Attention:  Director of Finance
                   and Chief Legal
                   Officer

 

$

100

 

100

%

 


 EX-3.100(A) 200 a2202241zex-3_100a.htm EX-3.100(A)

Exhibit 3.100(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

HUNTER’S GREEN ACQUISITION CORP.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Hunter’s Green Acquisition Corp. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Hunter’s Green Acquisition Corp.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on November 17, 1995.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The Articles of Incorporation of the Corporation are amended and restated to read in their entirety as follows:

 

ARTICLE I

 

The name of the Corporation is Hunter’s Green Acquisition Corp.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

1


 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Hunter’s Green Country Club, in the City of Tampa, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

2


 

ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition

 

3


 

seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

4


 

IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — Hunter’s Green Acquistion Corp.

 


 EX-3.100(B) 201 a2202241zex-3_100b.htm EX-3.100(B)

Exhibit 3.100(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

HUNTER’S GREEN ACQUISITION CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.   Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the stockholders the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of

 

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the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Florida and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

7


 

otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

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Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.101(A) 202 a2202241zex-3_101a.htm EX-3.101(A)

Exhibit 3.101(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

INDIGO RUN ASSET CORP.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed with the Secretary of State of the State of South Carolina on December 19, 1995 pursuant to Section 33-10-107 of the South Carolina Business Corporation Act of 1988, hereby execute this Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST.  The name of the corporation is Indigo Run Asset Corp. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of South Carolina is 1703 Laurel Street, Columbia SC 29201.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Golden Bear Golf Club, The Golf Club at Indigo Run, in the City of Hilton Head, State of South Carolina (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the South Carolina Business Corporation Act of 1988.

 

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FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.  Directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present.  Shareholders do not have a right to cumulate their votes for directors.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of South Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the South Carolina Business Corporation Act of 1988 as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of South Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated

 

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Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  Reserved.

 

*  *  *

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation.  Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.           On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.           The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.           The amendments were adopted by the shareholders.  On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock.  The number cast for the amendment was sufficient for approval by that voting group.

 

 

  Dated:  November 10, 2010.

INDIGO RUN ASSET CORP.

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

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 EX-3.101(B) 203 a2202241zex-3_101b.htm EX-3.101(B)

Exhibit 3.101(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

INDIGO RUN ASSET CORP.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of South Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by (i) the Board of Directors; or (ii) by the shareholders constituting at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the special meeting provided that such shareholders sign, date, and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose for which it is to be held. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original

 


 

meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the

 

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shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, in the timeframe set forth below, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in

 

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the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting on the date on which notice of the meeting is given (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Unanimous Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to nonvoting shareholders, the corporation shall give the nonvoting shareholders written notice of the proposed action at least ten (10) days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be

 

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required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of South Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of South Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least two (2) days before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a

 

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majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent of disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary

 

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or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations. (1)

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

(1)   South Carolina Statute § 33-8-520 requires this to be in the articles of incorporation. We have added it to the form articles of incorporation. There is no harm in duplicating it here as well.

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year.   The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal.   The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. A person entitled to notice of a meeting may waive any notice required by applicable law, the articles of incorporation, or these by-laws before or after the date and time stated in the notice of the meeting if a written waiver signed by the person entitled to the notice of the meeting is delivered to the corporation for filing in the minutes or corporate records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.102(A) 204 a2202241zex-3_102a.htm EX-3.102(A)

Exhibit 3.102(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

IRVING CLUB ACQUISITION CORP.

 

Irving Club Acquisition Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Irving Club Acquisition Corp.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                 The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF IRVING CLUB ACQUISITION CORP.”

 

2.                                 The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Irving Club Acquisition Corp.  The Corporation is a for-profit corporation.

 

3.                                 The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                            to own that certain parcel of real property, together with all improvements located thereon, currently known as the Las Colinas Country Club, in the City of Irving, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                            to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                            to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                 The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.                                 The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

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6.                               The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                 The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                 The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                 The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Irving Club Acquisition Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

IRVING CLUB ACQUISITION CORP.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

IRVING CLUB ACQUISITION CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Irving Club Acquisition Corp.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                            to own that certain parcel of real property, together with all improvements located thereon, currently known as the Las Colinas Country Club, in the City of Irving, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                            to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                            to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

2


 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.102(B) 205 a2202241zex-3_102b.htm EX-3.102(B)

Exhibit 3.102(b)

 

AMENDED AND RESTATED BYLAWS
OF
IRVING CLUB ACQUISITION, CORP.

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice

 


 

Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation

 


 

with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered

 


 

Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.103(A) 206 a2202241zex-3_103a.htm EX-3.103(A)

Exhibit 3.103(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

KINGWOOD COUNTRY CLUB, INC.

 

Kingwood Country Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Kingwood Country Club, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF KINGWOOD COUNTRY CLUB, INC.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Kingwood Country Club, Inc.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Clubs of Kingwood (Kingwood, Atascocita and Deerwood), in the City of Deerwood, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Kingwood Country Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

KINGWOOD COUNTRY CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

KINGWOOD COUNTRY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Kingwood Country Club, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Clubs of Kingwood (Kingwood, Atascocita and Deerwood), in the City of Deerwood, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, City of Austin, Texas 78701, Travis County, and the name of the registered agent of the Corporation at such address is Corporation Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one-hundred thousand (100,000) shares of Common Stock, with no par value.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

2


 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.103(B) 207 a2202241zex-3_103b.htm EX-3.103(B)

Exhibit 3.103(b)

 

AMENDED AND RESTATED BYLAWS
OF
KINGWOOD COUNTRY CLUB, INC.

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.104(A) 208 a2202241zex-3_104a.htm EX-3.104(A)

Exhibit 3.104(a)

 

ARTICLES OF AMENDMENT AND RESTATEMENT

 

OF THE

 

ARTICLES OF INCORPORATION

 

OF

 

KNOLLWOOD COUNTRY CLUB, INC.

 

The undersigned officer of the above corporation (the “Corporation”) existing pursuant to the Indiana Business Corporation Law, as amended (the “Act”), desiring to give notice of corporate action effectuating the amendment and restatement of its Articles of Incorporation, certifies the following facts:

 

ARTICLE I

 

AMENDMENT AND RESTATEMENT

 

FIRST.  The date of incorporation of the Corporation is January 25, 1983.

 

SECOND.  The name of the Corporation is Knollwood Country Club, Inc.

 

THIRD.  The name of the corporation following the Amendment and Restatement of the Articles of Incorporation of the Corporation is Knollwood Country Club, Inc.

 

FOURTH.  The exact text of the Amended and Restated Articles of Incorporation of the Corporation is attached hereto and made a part hereof as Exhibit A (the “Amended Articles”).

 

FIFTH.  The Amended Articles shall be effective upon filing with the Secretary of State of the State of Indiana.

 

ARTICLE II

 

MANNER OF ADOPTION AND VOTE

 

The Amended Articles contain an amendment requiring shareholder approval.  The Amended Articles were adopted by written consent by the Board of Directors on November 9, 2010, which consent was signed by each of the directors, and by written consent of the shareholders of the Corporation entitled to vote thereon on November 9, 2010, which consent was signed by each of the shareholders entitled to vote thereon.

 

The designation, number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the Amended Articles, the number of votes of each voting group represented, and the number of votes cast for and against the Amended Articles by each voting group entitled to vote separately on the Amended Articles is set forth below:

 


 

Designation of each Voting Group

 

TOTAL

 

Common

 

 

 

 

 

 

 

Number of Outstanding Shares

 

1000

 

1000

 

 

 

 

 

 

 

Number of Votes Entitled to Be Cast

 

1000

 

1000

 

 

 

 

 

 

 

Number of Votes Represented at Meeting

 

1000

 

1000

 

 

 

 

 

 

 

Number of Votes in Favor

 

1000

 

1000

 

 

 

 

 

 

 

Number of Votes Against

 

0

 

0

 

 

The number of votes cast for the Amended Articles by each voting group entitled to vote thereon was sufficient for approval by that voting group.

 

ARTICLE III

 

COMPLIANCE WITH LEGAL REQUIREMENTS

 

The undersigned officer of the Corporation hereby presents these Articles of Amendment and Restatement of the Articles of Incorporation of the Corporation to the Secretary of State of the State of Indiana for filing, and states that the manner of their adoption and the vote by which they were adopted constitute full legal compliance with the provisions of the Act, the previously existing articles of the Corporation, and the By-Laws of the Corporation.

 

[Signature Page Follows]

 

2


 

IN WITNESS WHEREOF, the undersigned officer executes these Articles of Amendment and Restatement of the Articles of Incorporation of the Corporation, and verifies subject to the penalties of perjury that the facts contained herein are true, this 10th day of November, 2010.

 

 

KNOLLWOOD COUNTRY CLUB, INC.

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

 

This document prepared by:

 

 

 

Perkins Coie LLP

 

1201 Third Avenue, Suite 4800

 

Seattle WA 98101-3099

 

 


 

EXHIBIT A

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

KNOLLWOOD COUNTRY CLUB, INC.

 

The above corporation (hereinafter referred to as the “Corporation”) existing pursuant to the Indiana Business Corporation Law, as amended (the “Act”), desiring to give notice of corporate action effectuating amendment and restatement of its Articles of Incorporation, sets forth the following facts:

 

FIRST.  The name of the corporation is Knollwood Country Club, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of Indiana is 251 East Ohio Street, Suite 500, Indianapolis, Indiana 46204.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Knollwood Country Club, in the City of Granger, State of Indiana (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 


 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Indiana, the Corporation’s Board of Directors is expressly authorized to make, alter and repeal the By-Laws of the Corporation, provided, however, that the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Indiana at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Corporation’s Board of Directors without any vacancies, institute proceedings to be adjudicated

 

2


 

bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

3


 EX-3.104(B) 209 a2202241zex-3_104b.htm EX-3.104(B)

Exhibit 3.104(b)

 

AMENDED AND RESTATED BY-LAWS

OF

KNOLLWOOD COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.    Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Indiana, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.    Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.    Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.    Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.    Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a

 


 

majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.    Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.    Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.    Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 

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days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.    List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.    Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Indiana, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

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Section 1.11.    Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.    Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.    Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.    Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.    Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Indiana and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.    Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Indiana whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.    Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.    Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.    Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her

 

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absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.    Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.    Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.    Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.    Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.    Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.    Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.    Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.    Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.    Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.    Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.    Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

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Section 6.4.    Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.    Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.    Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.    Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.    Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.    Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.    Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.    Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.    Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.    Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.105(A) 210 a2202241zex-3_105a.htm EX-3.105(A)

Exhibit 3.105(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
LA CIMA CLUB, INC.

 

La Cima Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is La Cima Club, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.         The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF LA CIMA CLUB, INC.”

 

2.         The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is La Cima Club, Inc. The Corporation is a for-profit corporation.

 

3.         The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                     to manage, lease and/or operate one or more sports or business clubs, in the City of Irving, State of Texas, including the sports or business club commonly known as La Cima Club (the “Business”);

 


 

(b)                    to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                     to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                    to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                     to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.         The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.         The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

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Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

6.         The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.         The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.         The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

9.        THE EXISTING CHARTER IS HEREBY AMENDED BY AMENDING ARTICLE XIV TO READ IN ITS ENTIRETY AS FOLLOWS:

 

ARTICLE XIV

 

Reserved.

 

10.       The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.       The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of La Cima Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

 

LA CIMA CLUB, INC.

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

 

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Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
LA CIMA CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is La Cima Club, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Irving, State of Texas, including the sports or business club commonly known as La Cima Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 


 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

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ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its

 

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debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

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 EX-3.105(B) 211 a2202241zex-3_105b.htm EX-3.105(B)

Exhibit 3.105(b)

 

AMENDED AND RESTATED BYLAWS
OF
LA CIMA CLUB, INC.

 

ARTICLE I
Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.    Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots; (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.106(A) 212 a2202241zex-3_106a.htm EX-3.106(A)

Exhibit 3.106(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
LAKEWAY CLUBS, INC.

 

Lakeway Clubs, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is Lakeway Clubs, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.                         The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF LAKEWAY CLUBS, INC.”

 

2.                         The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Lakeway Clubs, Inc. The Corporation is a for-profit corporation.

 

3.                         The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to hold the liquor license and manage or operate the liquor concessions for one or more country clubs or golf courses, in the greater Austin metropolitan area in the State of Texas, including the country clubs and golf courses currently known as Clubs of

 


 

Lakeway (Live Oak and Yaupon) and the Hills Country Club at Lakeway (the “Property”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to Corporations under the Texas Business Organizations Code.

 

4.                         The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                         The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

6.                         The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                         The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                         The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                         The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

3


 

10.                   The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                   The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of Lakeway Clubs, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

LAKEWAY CLUBS, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
LAKEWAY CLUBS, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Lakeway Clubs, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to hold the liquor license and manage or operate the liquor concessions for one or more country clubs or golf courses, in the greater Austin metropolitan area in the State of Texas, including the country clubs and golf courses currently known as Clubs of Lakeway (Live Oak and Yaupon) and the Hills Country Club at Lakeway (the “Property”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.106(B) 213 a2202241zex-3_106b.htm EX-3.106(B)

Exhibit 3.106(b)

 

AMENDED AND RESTATED BYLAWS
OF
LAKEWAY CLUBS, INC.

 

ARTICLE I
Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice

 


 

Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation

 


 

with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered

 


 

Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.107(A) 214 a2202241zex-3_107a.htm EX-3.107(A)

Exhibit 3.107(a)

 

CERTIFICATE OF FORMATION

 

OF

 

LAUREL SPRINGS HOLDCO, LLC

 

ARTICLE 1. NAME

 

The name of the limited liability company is Laurel Springs Holdco, LLC.

 

ARTICLE 2. REGISTERED OFFICE AND
REGISTERED AGENT

 

The address of the registered office of this limited liability company in Delaware is 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, State of Delaware 19808, and the name of its registered agent at such address is Corporation Service Company.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 13th day of December, 2006.

 

 

 

Lance W. Bass /s/

 

Lance W. Bass

 

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 04:36 PM 12/13/2006

 

FILED 04:30 PM 12/13/2006

 

SRV 061142086 – 4267129 FILE

 


 EX-3.107(B) 215 a2202241zex-3_107b.htm EX-3.107(B)

Exhibit 3.107(b)

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
LAUREL SPRINGS HOLDCO, LLC

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of Laurel Springs Holdco, LLC (the “Company”), is entered into by CCA Mezzanine Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on December 13, 2006, Lance W. Bass caused a Certificate of Formation (the “Certificate of Formation”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Limited Liability Company Agreement of Laurel Springs Holdco, LLC, dated as of December 26, 2006 entered into by CCA Mezzanine Holdco, LLC as the sole equity member (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.                              Name.

 

The name of the limited liability company continued hereby is Laurel Springs Holdco, LLC.

 

Section 2.                              Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.                              Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.                              Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.                              Members.

 

(a)                                 The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)                                The Member may act by written consent.

 

Section 6.                              Certificates.

 

Lance W. Bass was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.                              Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                                 to own equity interests and act as a partner in ClubCorp Laurel Springs, LP (the “Business”) and to manage, lease and/or operate one or more sports or business clubs, in the City of Suwanee, State of Georgia, including the sports or business club commonly known as the Laurel Springs Golf Club;

 

(b)                                to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

(c)                                 to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)                                to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

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filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                 to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.                              Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.                              Management.

 

(a)                                 Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)                                Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                                 Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)                                Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

3


 

or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                                 Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                                   Committees of Directors.

 

(i)                       The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                    In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                 Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)                                Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)                                Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                                    Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the

 

4


 

Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.                        Reserved.

 

Section 11.                        Officers.

 

(a)                                 Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)                                President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                                 Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)                                Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in

 

5


 

order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                                 Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                                   Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)                                Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.                        Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.                        Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.                        Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member

 

6


 

and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.                        Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.                        Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17.                        Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.                        Reserved.

 

Section 19.                        Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.                        Exculpation and Indemnification.

 

(a)           Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good

 

7


 

faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)                                To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                                 To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)                                A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                                 To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                                   The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.                        Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company

 

8


 

pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22                           Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.                        Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.                        Dissolution.

 

(a)                                 The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or

 

9


 

designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)                                Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                                 In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)                                The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.                        Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.                        Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.                        Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

10

 

Section 28.        Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.        Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.        Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.        Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.        Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.        Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.        Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

11


 

waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in Laurel Springs Holdco, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CCA MEZZANINE HOLDCO, LLC

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to A&R LLC Agreement — Laurel Springs Holdco, LLC

 


 

SCHEDULE A

 

Definitions

 

A.       Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on December 13, 2006, as amended or amended and restated from time to time.

 

“Company” means Laurel Springs Holdco, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means CCA Mezzanine Holdco, LLC, a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Membership
Interest

 

CCA Mezzanine
Holdco, LLC

 

CCA Mezzanine Holdco, LLC
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$

100

 

100

%

 

B-1


 

SCHEDULE C

 

 

DIRECTORS

 

 

1.

Eric L. Affeldt

 

 

2.

Eric C. Resnick

 

 

3.

Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR LAUREL SPRINGS HOLDCO, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-1

100% of Interests

 

Laurel Springs Holdco, LLC, a Delaware limited liability company (the “Company”), hereby certifies that CCA Mezzanine Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER        , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in Laurel Springs Holdco, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                         ] as of the date set forth below.

 

Dated:

 

 

 

 

 

 

Name:

 

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF LAUREL SPRINGS HOLDCO, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                              (print or typewrite name of Transferee),                                                         (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                                              (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                             , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

 

 

 

(Transferor)

 

 

 

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

 

E-1


 EX-3.108(A) 216 a2202241zex-3_108a.htm EX-3.108(A)

Exhibit 3.108(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

LIONSGATE GOLF CLUB, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed under the name LionsGate Golf Club, Inc. (the “Corporation”) with the Secretary of State of the State of Kansas on December 11, 1998 pursuant to Section 17-6605 of the General Corporation Law of the State of Kansas, hereby execute this Amended and Restated Articles of Incorporation, which were duly adopted by the Corporation’s stockholders and directors pursuant to Section 17-6602 and 17-6605 of the Kansas General Corporation Code, and do certify as follows:

 

FIRST. The name of the Corporation is LionsGate Golf Club, Inc.

 

SECOND. The address of the Corporation’s registered office in the State of Kansas is 200 SW 30th Street in the City of Topeka, County of Shawnee, 66611-0000. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own ownership interests and act as a partner in Nicklaus Golf Club, LP at LionsGate (the “Property”), and to operate or cause the Nicklaus Golf Club at LionsGate to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the General Corporation Law of the State of Kansas.

 


 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. [Reserved].

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Kansas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. [Reserved].

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Kansas as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Kansas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

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THIRTEENTH. [Reserved.]

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, these Amended and Restated Articles of Incorporation were signed by the undersigned duly authorized officer of the Corporation on this 10th day of November, 2010.

 

 

 

 

LIONSGATE GOLF CLUB, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 


 EX-3.108(B) 217 a2202241zex-3_108b.htm EX-3.108(B)

Exhibit 3.108(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

LIONSGATE GOLF CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Kansas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Kansas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Kansas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Kansas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

Section 2.9. Waiver of Notice. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, or a consent to holding such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

Section 2.10. Votes and Voting. All votes required of directors hereunder may be by voice vote or show of hands, unless a written ballot is requested, which request may be made by any one director. Each director shall have one vote, unless the Articles of Incorporation provide that directors elected by the holders of a class or series of stock shall have more or less than one vote per director on any matter. Every reference to a majority or other proportion of directors shall refer to a majority or other proportion of the votes of such directors.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.109(A) 218 a2202241zex-3_109a.htm EX-3.109(A)

Exhibit 3.109(a)

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 07:03 PM 11/10/2010
FILED 06:56 PM 11/10/2010
SRV 101077618 — 4246384 FILE

 

AMENDED AND RESTATED CERTIFICATE OF FORMATION
OF
MAC CLUB, LLC

 

THIS Amended and Restated Certificate of Formation of MAC Club, LLC (the “LLC”), dated as of November 9, 2010, has been duly executed and is being filed by CCA Mezzanine Holdco, LLC, as an authorized person, in accordance with the provisions of 6 Del. C. §18-208, to amend and restate the original Certificate of Formation of the LLC which was filed on November 3, 2006, with the Secretary of State of the State of Delaware (the “Certificate”), to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.).

 

The Certificate is hereby amended and restated in its entirety to read as follows:

 

Name. The name of the limited liability company formed and continued hereby is MAC Club, LLC.

 

Registered Office. The address of the registered office of the LLC in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Registered Agent. The name and address of the registered agent for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

[The remainder of this page is intentionally blank.]

 


 

IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Formation as of the date first-above written.

 

 

 

CCA Mezzanine Holdco, LLC

 

as an Authorized Person

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name: Ingrid Keiser

 

 

Title: Secretary

 


 EX-3.109(B) 219 a2202241zex-3_109b.htm EX-3.109(B)

Exhibit 3.109(b)

 

SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
MAC CLUB, LLC

 

This Second Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of MAC Club, LLC (the “Company”), is entered into by CCA Mezzanine Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on November 3, 2006, Thomas T. Henslee executed and filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Limited Liability Company Agreement of MAC Club, LLC, dated December 26, 2006, entered into by CCA Mezzanine Holdco, LLC as the sole member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.                                            Name.

 

The name of the limited liability company continued hereby is MAC Club, LLC.

 

Section 2.                                            Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.                                            Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.                                            Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.                                            Members.

 

(a)                                            The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)                                           The Member may act by written consent.

 

Section 6.                                            Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.                                            Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)                                            to manage, lease and/or operate one or more sports or business clubs, in the City of Chicago, State of Illinois, including the sports or business club commonly known as the MAC Club (the “Business”);

 

(b)                                           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

(c)                                            to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)                                           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

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filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                            to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.                                            Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.                                            Management.

 

(a)                                            Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)                                           Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)                                            Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)                                           Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

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or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)                                            Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)                                              Committees of Directors.

 

(i)                           The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                        In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                     Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)                                           Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)                                           Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)                                               Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the

 

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Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.                                      Reserved.

 

Section 11.                                      Officers.

 

(a)                                            Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)                                           President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)                                            Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)                                           Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in

 

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order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)                                            Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, or if any, if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)                                              Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and, the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)                                           Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.                                      Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.                                      Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.                                      Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member

 

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and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.                                      Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.                                      Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17.                                      Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.                                      Reserved.

 

Section 19.                                      Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.                                      Exculpation and Indemnification.

 

(a)                                            Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good

 

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faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)                                           To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)                                            To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)                                           A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)                                            To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)                                              The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.                                      Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company

 

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pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.                                      Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.                                      Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.                                      Dissolution.

 

(a)                                            The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or

 

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designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)                                           Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)                                            In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)                                           The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.                                      Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.                                      Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.                                      Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

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Section 28.                                      Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.                                      Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.                                      Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.                                      Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.                                      Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.                                      Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.                                      Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

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waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in MAC Club, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CCA MEZZANINE HOLDCO, LLC

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the Second A&R LLC Agreement — MAC Club, LLC

 


 

SCHEDULE A

 

Definitions

 

A.                      Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Second Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on November 3, 2006, as amended or amended and restated from time to time.

 

“Company” means MAC Club, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means CCA Mezzanine Holdco, LLC, a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Membership
Interest

 

CCA Mezzanine Holdco, LLC

 

CCA Mezzanine Holdco, LLC
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$

100

 

100

%

 

B-1


 

SCHEDULE C

 

 

DIRECTORS

 

 

1.

Eric L. Affeldt

 

 

2.

Eric C. Resnick

 

 

3.

Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR MAC CLUB, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-1

100 % of Interests

 

MAC Club, LLC, a Delaware limited liability company (the “Company”), hereby certifies that CCA Mezzanine Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER     , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in MAC Club, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                      ] as of the date set forth below.

 

Dated:

 

 

 

 

Name:

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF MAC CLUB, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                    (print or typewrite name of Transferee),                                    (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                              (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                        , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

(Transferor)

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

 

E-2


 EX-3.110(A) 220 a2202241zex-3_110a.htm EX-3.110(A)

Exhibit 3.110(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

MANAGEMENT COMPANY FOR EAGLE RIDGE AND THE PRESERVE

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Management Company for Eagle Ridge and the Preserve (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Management Company for Eagle Ridge and the Preserve.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on February 17, 1992.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The Articles of Incorporation of the Corporation, as amended to date, are amended and restated in their entirety to read as follows:

 

ARTICLE I

 

The name of the Corporation is Management Company for Eagle Ridge and the Preserve.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Eagle Ridge Golf Club, The Preserve, in

 

1


 

the City of Summerfield, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, all of which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and

 

2


 

repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the

 

3


 

appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

4


 

IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — Management Company for Eagle Ridge and the Preserve

 


 EX-3.110(B) 221 a2202241zex-3_110b.htm EX-3.110(B)

Exhibit 3.110(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

MANAGEMENT COMPANY FOR EAGLE RIDGE AND THE PRESERVE

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

2


 

any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

3


 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

5


 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefore by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

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Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.111(A) 222 a2202241zex-3_111a.htm EX-3.111(A)

Exhibit 3.111(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

MANAGER FOR CCHH, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed with the Secretary of State of the State of South Carolina on May 3, 1994 pursuant to Section 33-10-107 of the South Carolina Business Corporation Act of 1988, hereby execute this Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST.  The name of the corporation is Manager for CCHH, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of South Carolina is 5000 Thurmond Mall Boulevard, Columbia, 29201.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Country Club of Hilton Head, in the City of Hilton Head, State of South Carolina (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the South Carolina Business Corporation Act of 1988.

 

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FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved.]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.  Directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present.  Shareholders do not have a right to cumulate their votes for directors.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of South Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the South Carolina Business Corporation Act of 1988 as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of South Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated

 

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Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved.].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.

 

*  *  *

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation.  Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.                                       On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.                                       The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.                                       The amendments were adopted by the shareholders.  On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock, The number cast for the amendment was sufficient for approval by that voting group.

 

Dated: November 10, 2010

.

MANAGER FOR CCHH, INC.

 

 

 

 

 

 

By

/s/ Ingrid Keiser

 

 

Name: Ingrid Keiser

 

 

Its: Secretary

 

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 EX-3.111(B) 223 a2202241zex-3_111b.htm EX-3.111(B)

Exhibit 3.111(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

MANAGER FOR CCHH, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of South Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by (i) the Board of Directors; or (ii) by the shareholders constituting at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the special meeting provided that such shareholders sign, date, and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose for which it is to be held. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original

 


 

meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to

 

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the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, in the timeframe set forth below, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting on the date on which notice of the meeting is given (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by

 

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applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Unanimous Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to nonvoting shareholders, the corporation shall give the nonvoting shareholders written notice of the proposed action at least ten (10) days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of South Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of South Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least two (2) days before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.1

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this

 

11


 

21Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. A person entitled to notice of a meeting may waive any notice required by applicable law, the articles of incorporation, or these by-laws before or after the date and time stated in the notice of the meeting if a written waiver signed by the person entitled to the notice of the meeting is delivered to the corporation for filing in the minutes or corporate records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

13


 EX-3.112(A) 224 a2202241zex-3_112a.htm EX-3.112(A)

Exhibit 3.112(a)

 

FILED

 

IN THE OFFICE OF THE

 

SECRETARY OF STATE OF THE

 

STATE OF NEVADA

 

 

 

JAN 14 1999

 

 

 

 

NO.

C839-99

 

 

 

 

 

/s/ Dean Heller

 

 

DEAN HELLER, SECRETARY OF STATE

 

 

ARTICLES OF INCORPORATION

 

OF

 

MASTER CLUB, INC.

 

I, the person hereinafter named as incorporator, for the purpose of associating to establish a corporation, under the provisions and subject to the requirements of Title 7, Chapter 78 of Nevada Revised Statutes, and the acts amendatory thereof, and hereinafter sometimes referred to as the General Corporation Law of the State of Nevada, do hereby adopt and make the following Articles of Incorporation:

 

FIRST: The name of the corporation (hereinafter called the corporation) is “Master Club, Inc.”.

 

SECOND: The name of the corporation’s resident agent in the State of Nevada is CSC Services of Nevada, Inc., and the street address of the said resident agent where process may be served on the corporation is 502 East John Street, Carson City 89706. The mailing address and the street address of the said resident agent are identical.

 

PAR SHARES

 

THIRD: The number of shares the corporation is authorized to issue is 1,000, all of which are of a par value of $1.00 each. All of said shares are of one class and are designated as Common Stock.

 

DENY PREEMPTIVE RIGHTS

 

No holder of any of the shares of any class of the corporation shall be entitled as of right to subscribe for, purchase, or otherwise acquire any shares of any class of the corporation which the corporation proposes to issue or any rights or options which the corporation proposes to grant for the purchase of shares of any class of the corporation or for the purchase of any shares, bonds. securities, or obligations of the corporation which are convertible into or exchangeable for, or which carry any rights, to subscribe for, purchase, or otherwise acquire shares of any class of the corporation; and any and all of such shares, bonds, securities, or obligations of the corporation, whether now or hereafter authorized or created, may be issued, or may be reissued or transferred if the same have been reacquired and have treasury status, and any and all of such rights and options may be granted by the Board of Directors to such persons, firms, corporations, and associations, and for such lawful consideration, and on such terms, as the Board of Directors in its discretion may determine, without first offering the same or any thereof, to any said holder.

 

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FOURTH: The governing board of the corporation shall be styled as a “Board of Directors”, and any member of said Board shall be styled as a “Director.”

 

The number of members constituting the first Board of Directors of the corporation is two; and the name and the post office box or street address, either residence or business, of each of said members are as follows:

 

NAME

 

ADDRESS

 

 

 

Douglas T. Howe

 

3030 LBJ Freeway

Dallas, Texas 75234

 

 

 

Beryl E. Artz

 

3030 LBJ Freeway

Dallas, Texas 75234

 

The number of directors of the corporation may be increased or decreased in the manner provided in the Bylaws of the corporation; provided, that the number of directors shall never be less than one. In the interim between elections of directors by stockholders entitled to vote, all vacancies, including vacancies caused by an increase in the number of directors and including vacancies resulting from the removal of directors by the stockholders entitled to vote which are not filled by said stockholders, may be filled by the remaining directors, though less than a quorum.

 

FIFTH: The name and the post office box or street address, either residence or business, of the incorporator signing these Articles of Incorporation are as follows:

 

NAME

 

ADDRESS

 

 

 

Thomas T. Henslee

 

3030 LBJ Freeway, Suite 840

Dallas, Texas 75234

 

SIXTH: The corporation shall have perpetual existence.

 

SEVENTH:  The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the General Corporation Law of the State of Nevada, as the same may be amended and supplemented.

 

EIGHTH:  The corporation shall, to the fullest extent permitted by the General Corporation Law of the State of Nevada, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said Law from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights

 

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to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

 

NINTH:  The nature of the business of the corporation and the objects or the purposes to be transacted, promoted, or carried on by it are as follows, provided that the corporation may engage in any other lawful activity:

 

To carry on a general mercantile, industrial, investing, and trading business in all its branches; to devise, invent, manufacture, fabricate, assemble, install, service, maintain, alter, buy, sell, import, export, license as licensor or licensee, lease as lessor or lessee, distribute, job, enter into, negotiate, execute, acquire, and assign contracts in respect of, acquire, receive, grant, and assign licensing arrangements, options, franchises, and other rights in respect of, and generally deal in and with, at wholesale and retail, as principal, and as sales, business, special, or general agent, representative, broker, factor, merchant, distributor, jobber, advisor, and in any other lawful capacity, goods, wares, merchandise, commodities, and unimproved, improved, finished, processed, and other real, personal, and mixed property of any and all kinds, together with the components, resultants, and by—products thereof; to acquire by purchase or otherwise own, hold, lease, mortgage, sell, or otherwise dispose of, erect, construct, make, alter, enlarge, improve, and to aid or subscribe toward the construction, acquisition, or improvement of any factories, shops, storehouses, buildings, and commercial and retail establishments of every character, including all equipment, fixtures, machinery, implements, and supplies necessary, or incidental to, or connected with, any of the purposes or business of the corporation; and generally to perform any and all acts connected therewith or arising therefrom or incidental thereto, and all acts proper or necessary for the purpose of the business.

 

To engage generally in the real estate business as principal, agent, broker, and in any lawful capacity, and generally to take, lease, purchase, or otherwise acquire, and to own, use, hold, sell, convey, exchange, lease, mortgage, work, clear, improve, develop, divide, and otherwise handle, manage, operate, deal in, and dispose of real estate, real property, lands, multiple-dwelling structures, houses, buildings, and other works and any interest or right therein; to take, lease, purchase, or otherwise acquire, and to own, use, hold, sell, convey, exchange, hire, lease, pledge, mortgage, and otherwise handle, and deal in and dispose of, as principal, agent, broker, and in any lawful capacity, such personal property, chattels, chattels real, rights, easements, privileges, chooses in action, notes, bonds, mortgages, and securities as may lawfully be acquired, held, or disposed of; and to acquire,

 

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purchase, sell, assign, transfer, dispose of, and generally deal in and with, as principal, agent, broker, and in any lawful capacity, mortgages and other interests in real, personal, and mixed properties; to carry on a general construction, contracting, building, and realty management business as principal, agent, representative, contractor, subcontractor, and in any other lawful capacity.

 

To enter into general partnerships, limited partnerships (whether the corporation be a limited or general partner), joint ventures, syndicates, pools, associations, and other arrangements for carrying on of one or more of the purposes set forth in its Articles of Incorporation, jointly or in common with others.

 

To apply for, register, obtain, purchase, lease, take licenses in respect of, or otherwise acquire, and to hold, own, use, operate, develop, enjoy, turn to account, grant licenses and immunities in respect of, manufacture under and to introduce, sell, assign, mortgage, pledge, or otherwise dispose of, and, in any manner deal with and contract with reference to:

 

(a) inventions, devices, formulae, processes, and any improvements and modifications thereof;

 

(b) letters patent, patent rights, patented processes, copyrights, designs, and similar rights, trade-marks, trade symbols, and other indications of origin and ownership granted by or recognized under the laws of the United States of America or of any state or subdivision thereof, or of any foreign country or subdivision thereof, and all rights connected therewith or appertaining thereunto;

 

(c) franchises, licenses, grants, and concessions.

 

To purchase or otherwise acquire, and to hold, mortgage, pledge, sell, exchange, or otherwise dispose of, securities (which term, for the purpose of this Article NINTH, includes, without limitation of the generality thereof, any shares of stock, bonds, debentures, notes, mortgages, or other obligations, and any certificates, receipts, or other instruments representing rights to receive, purchase, or subscribe for the same, or representing any other rights or interests therein or in any property or assets) created or issued by any persons, firms, associations, corporations, or governments or subdivisions thereof; to make payment therefor in any lawful manner; and to exercise, as owner or holder of any securities, any and all rights, powers, and privileges in respect thereof.

 

To make, enter into, perform, and carry out contracts of every kind and description with any person, firm. association, corporation, or government or

 

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subdivision thereof.

 

To acquire, by purchase, exchange, or otherwise, all, or any part of, or any interest in, the properties, assets, business, and good will of any one or more persons, firms, associations, or corporations heretofore or hereafter engaged in any business for which a corporation may now or hereafter be organized under the laws of the State of Nevada; to pay for the same in cash, property, or its own or other securities, to hold, operate, reorganize, liquidate, sell, or in any manner dispose of the whole or any part thereof; and in connection therewith, to assume or guarantee performance of any liabilities, obligations, or contracts of such persons, firms, associations, or corporations, and to conduct the whole or any part of any business thus acquired.

 

To lend its uninvested funds from time to time to such extent, to such persons, firms, associations, corporations, governments or subdivisions thereof and on such terms and on such security, if any, as the Board of Directors of the corporation may determine.

 

To endorse or guarantee the payment of principal, interest, or dividends upon, and to guarantee the performance of sinking fund or other obligations of, any securities, and to guarantee in any way permitted by law the performance of any of the contracts or other undertakings in which the corporation may otherwise be or become interested, of any persons, firm, association, corporation, government or subdivision thereof, or of any other combination, organization, or entity whatsoever.

 

To borrow money for any of the purposes of the corporation, from time to time, and without limit as to amount; from time to time to issue and sell its own securities in such amounts, on such terms and conditions, for such purposes and for such prices, now or hereafter permitted by the laws of the State of Nevada and by these Articles of Incorporation, as the Board of Directors of the corporation may determine; and to secure such securities by mortgage upon, or the pledge of, or the conveyance or assignment in trust of, the whole or any part of the properties, assets, business, and good will of the corporation, then owned or thereafter acquired.

 

To purchase, hold, cancel, reissue, sell, exchange, transfer, or otherwise deal in, its own securities from time to time to such an extent and in such manner and upon such terms as the Board of Directors of the corporation shall determine; provided that the corporation shall not use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of its capital, except to the extent permitted by law; and provided further that shares of its own capital stock belonging to the corporation shall not be voted upon directly or indirectly.

 

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To organize or cause to be organized under the laws of the State of Nevada, or of any other state of the United States of America, or of the District of Columbia, or of any territory, dependency, colony, or possession of the United States of America, or of any foreign country, a corporation or corporations for the purpose of transacting, promoting, or carrying on any or all of the objects or purposes for which the corporation is organized, and to dissolve, wind up, liquidate, merge, or consolidate any such corporation or corporations or to cause the same to be dissolved, wound up, liquidated, merged, or consolidated.

 

To conduct its business in any and all of its branches and maintain offices both within and without the State of Nevada, in any and all states of the United States of America, in the District of Columbia, in any or all territories, dependencies, colonies, or possessions of the United States of America, and in foreign countries.

 

To such extent as a corporation organized under the General Corporation Law of the State of Nevada may now or hereafter lawfully do, to do, either as principal or agent and either alone or in connection with other corporations, firms, or individuals, all and everything necessary, suitable, convenient, or proper for, or in connection with, or incident to, the accomplishment of any of the purposes or the attainment of any one or more of the objects herein enumerated, or designed directly or indirectly to promote the interests of the corporation or to enhance the value of its properties; and in general to do any and all things and exercise any and all powers, rights, and privileges which a corporation may now or hereafter be organized to do or to exercise under the General Corporation Law of the State of Nevada or under any act amendatory thereof, supplemental thereto, or substituted therefor.

 

The foregoing provisions of this Article NINTH shall be construed both as purposes and powers and each as an independent purpose and power. The foregoing enumeration of specific purposes and powers shall not be held to limit or restrict in any manner the purposes and powers of the corporation, and the purposes and powers herein specified shall, except when otherwise provided in this Article NINTH, be in no wise limited or restricted by reference to, or inference from, the terms of any provision of this or any other Article of these Articles of Incorporation; provided, that the corporation shall not carry on any business or exercise any power in any state, territory, or country which under the laws thereof the corporation may not lawfully carry on or exercise.

 

TENTH: The corporation reserves the right to amend, alter, change, or repeal any provision contained in these Articles of Incorporation in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

6


 

IN WITNESS WHEREOF, I do hereby execute these Articles of Incorporation on January 13, 1999 .

 

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee

Incorporator

 

7


 

STATE OF TEXAS

)

 

)

COUNTY OF DALLAS

)

 

On this 13th day of January, 1999, personally appeared before me, a Notary Public in and for the State and County aforesaid, Thomas T. Henslee, known to me to be the person described in and who executed the foregoing Articles of Incorporation, and who acknowledged to me that he executed the same freely and voluntarily and for the uses and purposes therein mentioned.

 

WITNESS my hand and official seal, the day and year first above written.

 

 

 

/s/ Shannon Bowman Drissel.

 

Notary Public

 

 

(Notarial Seal)

 

[Notary Public Seal]

 

8


 

 

STATE OF NEVADA

Telephone (702) 687-5203

Secretary of State

OFFICE OF THE SECRETARY OF STATE

Fax (702) 687-3471

 

State Capital Complex

 

 

Carson City.Nevada 89710

 

 

FILED

 

IN THE OFFICE OF THE

 

SECRETARY OF STATE OF THE

 

STATE OF NEVADA

 

 

 

JAN 14 1999

 

 

 

 

NO.

C839-99

 

 

 

 

 

/s/ Dean Heller

 

 

DEAN HELLER, SECRETARY OF STATE

 

 

CERTIFICATE OF ACCEPTANCE
OF APPOINTMENT BY
RESIDENT AGENT

 

In the matter of

MASTER CLUB, INC.

 

Name of Corporation

I, 

CSC SERVICES OF NEVADA. INC.

with address at Suite E, Street 502 EAST JOHN STREET,

 

Name of Resident Agent

 

City of CARSON CITY, State of Nevada, Zip Code 89706, hereby accept appointment as resident agent of the above-named corporation in accordance with NRS 78.090. (mailing address if different:                                                  )

 

 

 

By:

/s/ [illegible]

JANUARY 13 1999

 

 

Signature of Resident Agent

 

 

NRS 78.090. Except during any period of vacancy described in NRS 78.097, every corporation must have a resident agent, who may be either a natural person or a corporation, resident, or located in this state. Every resident agent must have a street address, where he maintains an office for the service of process, and may have a separate mailing address such as a Post Office Box, which may be different from the street address. The address of the resident agent is the registered office of the corporation in this state. The resident agent may be any bank or banking corporation or other corporation located and doing business in this state. The Certificate of Acceptance must be filed at the time of the initial filing of the corporate papers.

 


 EX-3.112(B) 225 a2202241zex-3_112b.htm EX-3.112(B)

Exhibit 3.112(b)

 

BYLAWS OF

 

MASTER CLUB, INC.

 

ARTICLE I.

 

OFFICES

 

A.                                    Principal Office

 

The principal office of the corporation is located at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

B.                                    Other Offices

 

Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

C.                                    Registered Office

 

The Registered office of the corporation is located at 502 East John Street, Carson City, Nevada 89706.

 

D.                                    Registered Agent

 

The name of the registered agent of the corporation at such address is Corporation Service Company.

 

ARTICLE II.

 

SHAREHOLDERS MEETINGS

 

A.                                    Place of Meetings

 

All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or pursuant to authority hereinafter granted to the Board, or (ii) by the written consent of all persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of the residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

B.                                    Time of Annual Meeting — Business Transacted

 

The annual meeting shall be held on the date and the time fixed, from time to time, by the directors, provided that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted that is within the powers of the shareholders. A special meeting shall be held on the date and at the time fixed by the directors.

 

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C.                                    Special Meetings

 

Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

D.                                    Notice of Meetings

 

Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of share, securities, or any other consideration (other than money) in the process of winding up.

 

E.                                      Consent of Absentees

 

The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though it had been held at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

F.                                      Quorum

 

The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting constitutes a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

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G.                                    Voting

 

Unless a record date for voting purposes be fixed, as thereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

H.                                    Proxies

 

Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

I.                                         Adjourned Meetings and Notice Thereof

 

Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

J.                                      Action Without Meeting

 

Any action that, under any provision of the Nevada Business Corporation Act, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized in writing, signed by all of the persons who would be entitled to vote on that action at a meeting, and filed with the Secretary of the corporation. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the corporation.

 

ARTICLE III.

 

DIRECTORS

 

A.                                    Directors Defined

 

“Directors,” when used in relation to any power or duty requiring collective action, means “Board of Directors.”

 

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B.                                    Powers

 

Subject to limitation imposed by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

C.                                    Number of Directors

 

The authorized number of Directors of the corporation shall be not less than one (1) nor more than five (5) until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

D.                                    Election and Term of Office

 

The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

E.                                      Vacancies

 

Vacancies on the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of this term of office.

 

F.                                      Quorum

 

A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

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G.                                    Place of Meetings

 

Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

H.                                    Regular Meetings

 

Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

I.                                         Call of Special Meeting

 

Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of holding of the meeting.

 

J.                                      Notice of Adjournment

 

Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

K.                                    Waiver of Notice: Consent to Meeting

 

The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice of a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

L.                                     Adjournment

 

A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

M.                                  Actions without Meetings

 

Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings

 

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of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

N.                                    Fees and Compensation

 

Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

O.                                   Indemnification of Directors, Officers and Employees

 

1.  In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of this alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitably merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

2. Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interest of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

3.  The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or

 

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other persons for expenses of a kind not subject to policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV.

 

OFFICERS

 

A.                                    Officers

 

The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

B.                                    Other Officers

 

The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

C.                                    Removal and Resignation

 

Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance or such resignation shall not be necessary to make it effective.

 

D.                                    Vacancies

 

A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

E.                                      Chairman of the Board

 

The Chairman of the Board, if there shall be such officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

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F.                                      President

 

Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Within this authority and in the course of his duties the President shall be empowered to preside at all meetings of the shareholders and in the absence of the Chairman of the Board, or, if there is none, at all meetings of the Board of Directors, and shall be ex officio a member of all the standing committees, including the Executive Committee, if any.

 

G.                                    Vice President

 

In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws.

 

H.                                    Secretary

 

The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

I.                                         Treasurer

 

The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors.

 

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He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V.

 

EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

A.                                    Authority for Execution of Instruments

 

The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and that authority may be general or confined to specific instances, and, unless so authorized, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.

 

B.                                    Execution of Instruments

 

Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, other corporate instruments or documents, and certificates of shares of stock owned by the corporation shall be executed, signed, or endorsed by the President or any Vice President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal affixed thereto.

 

C.                                    Bank Accounts and Deposits

 

1.  All funds of the corporation shall be deposited from time to time to the credit of the corporation with such banks, trust companies, or other depositaries as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the corporation to whom that power may be delegated from time to time by the Board of Directors.

 

2.  Endorsements for deposit to the credit of the corporation in any of its duly authorized depositaries may be made without countersignatures by the President or any Vice President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the corporation to whom the Board of Directors, by resolution, shall have delegated that power, or by hand stamped impression in the name of the corporation.

 

3.  All checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors.

 

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ARTICLE VI.

 

MISCELLANEOUS

 

A.                                    Record Date and Closing Stock Books

 

The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any vote at any meeting of shareholders or entitled to notice of any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

B.                                    Inspection of Corporate Records

 

The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

C.                                    Certificates for Shares

 

A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

D.                                    Transfer of Stock

 

The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his

 

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agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

E.                                      Lost Certificates

 

New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

F.                                      Corporate Seal

 

A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

G.                                    Contracts—Execution of Documents

 

The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or top pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

H.                                    Representation of Shares of Other Corporations

 

The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized to do so by proxy or power of attorney duly executed by said officers.

 

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I.                                         Inspection of Bylaws

 

The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VII.

 

AMENDMENTS

 

A.                                    Powers of Shareholders

 

New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

B.                                    Power of Directors

 

Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

ACKNOWLEDGED AND ADOPTED effective January 14, 1999.

 

 

 

 

 

/s/ James E. Maser

 

 

 

James E. Maser, Director

 

 

 

 

 

 

 

 

 

 

 

/s/ Edward Spears

 

 

 

Edward Spears, Director

 

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 EX-3.113(A) 226 a2202241zex-3_113a.htm EX-3.113(A)

Exhibit 3.113(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

MEMORIAL STADIUM CLUB MANAGEMENT CORP.

 

Memorial Stadium Club Management Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Memorial Stadium Club Management Corp.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF MEMORIAL STADIUM CLUB MANAGEMENT CORP.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Memorial Stadium Club Management Corp.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Austin, State of Texas, including the sports or business club commonly known as University of Texas Club (the “Business”);

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

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6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Memorial Stadium Club Management Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

MEMORIAL STADIUM CLUB MANAGEMENT CORP.

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

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Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

MEMORIAL STADIUM CLUB MANAGEMENT CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Memorial Stadium Club Management Corp.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Austin, State of Texas, including the sports or business club commonly known as University of Texas Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

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Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

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 EX-3.113(B) 227 a2202241zex-3_113b.htm EX-3.113(B)

Exhibit 3.113(b)

 

AMENDED AND RESTATED BYLAWS

OF

MEMORIAL STADIUM CLUB MANAGEMENT CORP.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies. or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.114(A) 228 a2202241zex-3_114a.htm EX-3.114(A)

Exhibit 3.114(a)

 

CERTIFICATE REGARDING

 

AMENDED AND RESTATED CHARTER

 

OF

 

MEMPHIS CITY CLUB, INC.

 

Pursuant to Section 48-20-107 (d) of the Tennessee Business Corporation Act, the undersigned, in connection with the filing of the Amended and Restated Charter of Memphis City Club, Inc., does hereby certify as follows:

 

1.                                       The Amended and Restated Charter contains an amendment or amendments to the Charter requiring shareholder approval.

 

2.                                       The name of the Corporation is:  Memphis City Club, Inc.

 

3.                                       The text of each amendment adopted is as follows:

 

See Exhibit A attached hereto and incorporated herein by reference.

 

4.                                       The date of each amendment’s adoption is November 9, 2010.

 

5.                                       Each amendment was duly adopted by the shareholder.

 

 

Secretary

 

/s/ Ingrid Keiser

Signer’s Capacity

 

Signature

 

 

 

 

 

 

November  , 2010

 

Ingrid Keiser

Date

 

Name of Signer (Typed or Printed)

 

 

 

0188828

 

 

Corporation’s Control Number

 

 

(If Known)

 

 

 


 

EXHIBIT A

 

AMENDED AND RESTATED CHARTER

 

OF

 

MEMPHIS CITY CLUB, INC.

 

(For — Profit)

 

Pursuant to Section 48-20-107 of the Tennessee Business Corporation Act, this Amended and Restated Charter amends and restates the original Charter of Memphis City Club, Inc. (the “Corporation”) filed on May 12, 1987, as heretofore amended, as set forth herein.

 

1.                                       The name of the Corporation is Memphis City Club, Inc.

 

2.                                       The Corporation is a for-profit corporation formed under the laws of Tennessee, and its principal office address in Tennessee is 530 Gay Street, Nashville, Tennessee  37203.

 

3.                                       The text of the Amended and Restated Charter of Memphis City Club, Inc. is as follows:

 

FIRST.  The name of the corporation is Memphis City Club, Inc.

 

SECOND.  The street address and zip code of the Corporation’s registered office in the State of Tennessee is 2908 Poston Avenue in the City of Nashville, County of Davidson, 37203.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business club, in the City of Memphis, State of Tennessee, including the sports or business club commonly known as Crescent Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and

 

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all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Tennessee Business Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class of shares that together have unlimited voting rights and are entitled to receive the net assets of the Corporation upon dissolution.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Tennessee, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the

 

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extent such elimination or limitation of personal liability is not permitted under the Tennessee Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Charter, and other provisions authorized by the laws of the State of Tennessee at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Charter in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies , institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, or sequestrator (or other similar official) of this Corporation for a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  This Amended and Restated Charter was duly approved by the Board of Directors and the shareholder of the Corporation by that certain Consent Action dated November 9, 2010, and pursuant to Section 48-20-107 of the Tennessee Business Corporation Act.  This Amended and Restated Charter supersedes the original charter and all amendments thereto.

 

SIXTEENTH.  The Corporation is for profit.

 

SEVENTEENTH.  The street address and zip code of the principal office of the Corporation is 530 Gay Street, Nashville, Nashville, Tennessee  37203.

 

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IN WITNESS WHEREOF, the undersigned, being a duly authorized Officer of the Corporation, has executed this Amended and Restated Charter this 9th day of November, 2010.

 

 

Secretary

 

/s/ Ingrid Keiser

Signer’s Capacity

 

Ingrid Keiser

 

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 EX-3.114(B) 229 a2202241zex-3_114b.htm EX-3.114(B)

Exhibit 3.114(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

MEMPHIS CITY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Tennessee, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the charter or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the charter or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the charter, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the charter, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the.Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder which list must be available for inspection beginning at least two (2) business days after notice of the meeting is given to which the list was prepared and continuing through the meeting. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled

 

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to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. Unless otherwise restricted by the charter, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote (except that at least ten (10) days notice must be given to any nonvoting shareholders if required by the Tennessee Business Corporation Act or the charter), if all shareholders entitled to vote on the action consent to taking such action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation for inclusion n the minutes or filing with the corporate records by delivery to its registered office in the State of Tennessee, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting pow6r of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the charter, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Tennessee and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Tennessee whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the charter, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the charter or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may create one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The creation of a committee and appointment of a member or members to it must be approved by the greater of (a) a majority of all of the directors in office when the action is taken, or (b) the number of directors required by the charter or by-laws to take action pursuant to Section 2.6 hereof. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8


 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

9


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the charter, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

12


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, unless the charter or the Tennessee Business Corporation Act reserves this power exclusively to the shareholders in whole or in part. The shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.115(A) 230 a2202241zex-3_115a.htm EX-3.115(A)

Exhibit 3.115(a)

 

 

1972136

 

 

 

FILED
the office of the Secretary of State
of the State of California
JUN 21 1996

 

/s/ Bill James

 

Bill James, Secretary of State

 

ARTICLES OF INCORPORATION

 

OF

 

MH VILLAS, INC.

 

FIRST: The name of the corporation is MH Villas, Inc.

 

SECOND: The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business, or the practice of a profession permitted to be incorporated by the California Corporations Code.

 

THIRD: The name of this corporation’s initial agent for service of process in the State of California is C T Corporation System.

 

FOURTH: The total number of shares which the corporation is authorized to issue is one thousand (1,000) common shares of the par value of One Dollar ($1.00) each.

 

FIFTH: This corporation is a close corporation. All of the corporation’s issued shares shall be held of record by not more than thirty-five (35) persons.

 

IN WITNESS WHEREOF, the undersigned have executed these articles this 19th day of June, 1996.

 

 

 

INCORPORATORS:

 

 

 

 

 

/s/ Linda Blanton-Myers

 

Linda Blanton-Myers

 

 

 

 

 

/s/ Murry E. Page

 

Murry E. Page

 

Articles of Incorporation - California
A4936.1.29.5A

solo page

 


 EX-3.115(B) 231 a2202241zex-3_115b.htm EX-3.115(B)

Exhibit 3.115(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

MH VILLAS, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of California, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board, the President, or the holders of shares entitled to cast not less than 10% of the votes but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person

 


 

or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the

 


 

Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of California, its principal place of business, or an officer or agent of the corporation having custody of the

 


 

book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation. The foregoing notwithstanding, directors may not be elected by written consent except by unanimous written consent of all shares entitled to vote for the election of directors; provided, however, that the shareholders may elect a director to fill a vacancy, other than a vacancy created by removal, by the written consent of a majority of the outstanding shares entitled to vote.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of

 


 

those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The number of directors of the corporation shall be not less than one nor more than five. The board of directors or shareholders shall fix the exact number of directors in the manner provided in the bylaws, within the limits specified above.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by approval of the outstanding shares.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of California and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of California whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 


 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 


 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 


 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President, Secretary and Chief Financial Officer, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Chief Financial Officer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint

 


 

venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise. After the issuance of shares, a by-law specifying or changing a fixed number of directors or the maximum or minimum number or changing from a fixed to a variable board or vice versa may only be adopted by approval of the outstanding shares.

 

[end]

 


 EX-3.116(A) 232 a2202241zex-3_116a.htm EX-3.116(A)

Exhibit 3.116(a)

 

 

FILED
04 DEC 17 PM 2:58
SECRETARY OF STATE
TALLAHASSEE, FLORIDA

 

 

 

#04000248769 3

 

ARTICLES OF AMENDMENT

 

TO

 

ARTICLES OF INCORPORATION

 

OF

 

KENDALL GOLF MANAGEMENT, INC.

 

Document No. P94000086348

 

Pursuant to the provisions of section 607.1006, Florida Statutes, this Florida Profit Corporation adopts the following amendment to its Articles of Incorporation:

 

1. The name of the corporation is Kendall Golf Management, Inc.

 

2. Article I of the Articles of Incorporation of the corporation is hereby amended to mad as follows:

 

“The name of the corporation is Monarch EP Management Corp.”

 

3. The amendment herein provided for was duly recommended by the Board of Directors of the corporation to the shareholders of the corporation on December 16, 2004.

 

4. The amendment herein provided for was duly approved by the shareholders of the corporation on December 16, 2004. The number of votes cast for the amendment by the shareholders was sufficient for approval.

 

5. Tice effective time and date of these Articles of Amendment shall be upon filing.

 

Executed on December 16, 2004.

 

 

/s/ Thomas T. Henslee

 

Thomas T. Henslee
Secretary

 

#04000248769 3

 


 

 

FILED
1995 JUN 19 PM 4:03
SECRETARY OF STATE
TALLAHASSEE, FLORIDA

 

ARTICLES OF AMENDMENT OF THE
ARTICLES OF INCORPORATION OF
MATANZAS WOODS MANAGEMENT CORP.

 

The undersigned, Matanzas Woods Management Corp. (the “Corporation’), a corporation existing pursuant to the Florida Business Corporation Act, as amended, desiring to give notice of corporate action effectuating amendment of certain provinces of its Articles of Incorporation, sets forth the following facts:

 

ARTICLE I
AMENDMENT

 

Section 1. The Corporation was incorporated on November 21, 1994, Charter No. P94000086348.

 

Section 2. The name of the Corporation following this amendment shall be Kendall Golf Management, Inc.

 

Section 3. The exact text of Article 1 of the Articles of Incorporation of the Corporation is now as follows:

 

The name of the corporation shall be: Kendall Golf Management, Inc.

 

This Amendment was adopted as of June 13, 1995.

 

ARTICLE II
MANNER OF ADOPTION AND VOTE

 

The manner of adoption of vote by which the Amendment was approved by the Corporation is as follows:

 

The Board of Directors of the Corporation, as of June 13, 1995, duly adopted resolutions approving the Amendment. Shareholder action for the Amendment is not required.

 

IN WITNESS WHEREOF, the undersigned Corporation has caused these Articles of Amendment to be signed by a duly authorized officer this 13th day of June, 1995.

 

 

MATANZAS WOODS MANAGEMENT CORP.

 

 

 

 

 

By:

/s/ Beryl Artz

 

 

Beryl Artz, Vice President

 


 

 

FILED
94 NOV 21 9:52 AM
SECRETARY OF STATE

 

ARTICLES OF INCORPORATION

 

The undersigned incorporator, for the purpose of forming a corporation under the Florida Business Corporation Act, hereby adopts the following Articles of Incorporation.

 

ARTICLE I.
NAME

 

The name of the corporation shall be: Matanzas Woods Management Corp.

 

ARTICLE II.
PRINCIPAL OFFICE

 

The principal place of business and mailing address of this corporation shall be:

 

3030 LBJ Freeway, Suite 350
Dallas, Texas 75234

 

ARTICLE III.
INITIAL REGISTERED AGENT
AND STREET ADDRESS

 

The name and address of the initial registered agent is:

 

C T Corporation System
1200 South Pine Island Road
Plantation, Florida 33324

 

ARTICLE IV.
INCORPORATOR

 

The name and street address of the incorporator to these Articles of Incorporation is:

 

John M. Theirl
3030 LBJ Freeway, Suite 240
Dallas, Texas 75234

 

ARTICLE V.
SHARES

 

The number of shares of stock that this corporation is authorized to have outstanding at any one time is: One Thousand Shares, with a par value of One Dollar ($1.00) per share. Each of the

 

1


 

said shares of stock shall entitle the holder thereof to one (1) vote at any meeting of the stockholders.

 

ARTICLE VI.
PURPOSE

 

The purpose for which the corporation is organized is the transaction of any or all lawful business or activity.

 

ARTICLE VII.
INITIAL DIRECTORS

 

The members of the governing board of the corporation shall be called Directors, and the number of Directors constituting the initial Board of Directors shall be three (3) or more. Thereafter, the number of Directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of the corporation and the laws of the State of Florida. Directors do not need to be shareholders, but shall be at least twenty-one (21) years of age and at least one shall be a citizen of the United States. The names and addresses of the first Board of Directors, which shall consist of three (3) persons, and who shall hold office until their successors are duly elected and qualified are as follows:

 

James M. Hinckley
3030 LBJ Freeway, 7th Floor
Dallas, Texas 75234

 

Jack T. Lupton, Jr.
3030 LBJ Freeway, 5th Floor
Dallas, Texas 75234

 

Beryl E. Artz
3030 LBJ Freeway, Suite 350
Dallas, Texas 75234

 

ARTICLE VIII.
NO ASSESSMENT

 

The capital stock of the corporation, after the amount of the subscription price has been paid in money, property, or services, as the Directors shall determine, shall not be subject to assessment to pay the debts of the corporation, nor for any other purpose, and no stock issued as fully paid up shall ever be assessable or assessed.

 

2


 

ARTICLE IX.
PREEMPTIVE RIGHTS

 

Shareholders of the Corporation shall have preemptive rights to acquire their pro rata share of stock of the Corporation for all issues of an class of stock of the Corporation, no matter when authorized, and for whatever consideration is contemplated to be received by the Corporation including but not limited to cash, other property, services, the acquisition of others corporation’s shares or property through merger or reissuance of all redeemed or otherwise acquired shares, including the reissuance of treasury shares.

 

ARTICLE X.
AMENDMENT

 

The Corporation reserves the right to amend or repeal any provisions contained in these Articles of Incorporation, or any amendment hereto.

 

IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of Incorporation this 18th day of November, 1994.

 

 

 

/s/ John M. Theirl

 

John M. Theirl

 

STATE OF TEXAS

)

 

)

COUNTY OF DALLAS

)

 

BEFORE ME, the undersigned authority, on this day personally appeared John M. Theirl, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of November, 1994.

 

 

 

/s/ Melissa K. Eubanks

 

Notary Public, State of Texas

 

 

 

12/1/97

[Notary Public Seal]

My Commission Expires:

 

3


 

 

FILED
94 NOV 21 AM 9:52

SECRETARY OF STATE
TALLAHASSEE FLORIDA

 

CERTIFICATE OF DESIGNATION OF

 

REGISTERED AGENT/REGISTERED OFFICE

 

PURSUANT TO THE PROVISIONS OF SECTION 607.0501 or 617.0501, FLORIDA STATUTES, THE UNDERSIGNED CORPORATION, ORGANIZED UNDER THE LAWS OF THE STATE OF FLORIDA, SUBMITS THE FOLLOWING STATEMENT IN DESIGNATING THE REGISTERED OFFICE/REGISTERED AGENT, IN THE STATE OF FLORIDA.

 

1.                         The name of the corporation is: Matanzas Woods Management Corp.

 

2.                         The name and address of the registered agent and office is:

 

C T Corporation System
1200 South Pine Island Road
Plantation, Florida 33324

 

Having been named as registered agent and to accept service of process for the above stated corporation at the place designated in this certificate, I hereby accept the appointment as registered agent and agree to act in this capacity. I further agree to comply with the provisions of all statutes relating to the proper and complete performance of my duties, and I am familiar with and accept the obligations of my position as registered agent.

 

 

 

/s/ Daniel R. Glatz

 

DANIEL R. GLATZ
ASSISTANT VICE PRESIDENT

 

DIVISION OF CORPORATIONS, P.O. BOX 6327, TALLAHASSEE, FL

 


 EX-3.116(B) 233 a2202241zex-3_116b.htm EX-3.116(B)

Exhibit 3.116(b)

 

Amended July 10, 1995

 

BYLAWS
OF
KENDALL GOLF MANAGEMENT, INC.
F/K/A MATANZAS WOODS MANAGEMENT CORP.
(Organized under the Laws of the State of Florida Business Corporation Act)

 

ARTICLE 1
OFFICES

 

1.1. Registered Office. The name and location of the registered office shall be CT Corporation System, 1200 South Pine Island Road, Plantation, Florida 33324. Certificate of Designation of Registered Agent/Registered Office attached hereto.

 

1.2. Other Offices. The Corporation may also have offices at such other places located within or without the State of Florida as the Board of Directors may from time to time determine, or as the business of the Corporation may require.

 

ARTICLE 2
MEETINGS OF SHAREHOLDERS

 

2.1. Location of Meetings. Meetings of shareholders shall be held in the County of Dade, State of Florida, or at any other location within or without the State which may be specified in the notice of the meeting or in a duly executed waiver thereof. Meetings of shareholders may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

 

2.2. Annual Meetings. An annual meeting of shareholders shall be held in or out of this state on the third Thursday of the third month following the end of the Corporation’s fiscal year if not a legal holiday, and if a legal holiday, then on the next business day following, at the time aforesaid. The date and time of the annual meeting of shareholders may be changed by appropriate resolutions of the Board of Directors, to a time within sixty (60) days before or following the date stated herein. At this meeting, the shareholders shall elect a Board of Directors, and may transact other business properly brought before the meeting.

 

2.3. List of Shareholders. After fixing a record date for a meeting, a corporation shall prepare an alphabetical list of the names of all its shareholders who are entitled to notice of a shareholders’ meeting, arranged by voting group with the address of, and the number and class and series, if any, of shares held by each. The shareholders’ list must be available for inspection by any shareholder for a period of ten (10) days prior to the meeting or such shorter time as exists between the record date and the meeting and continuing through the meeting at the corporation’s principal office, at a place identified in the meeting notice in the

 


 

city where the meeting will be held, or at the office of the corporation’s transfer agent or registrar.

 

2.4. Special Meetings. Special meetings of the shareholders may be called by the President or the Board of Directors or the holders of not less than one-fifth of all shares entitled to vote at such meetings. Special shareholders’ meetings may be held in or out of the state as stated in the notice of the special meeting. Only Business within the purpose or purposes described in the special meeting notice may be conducted at a special shareholders’ meetings.

 

2.5. Notice of Meetings. A notice stating the date, time, and place of each annual meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than sixty days before the date of the meeting. Notice shall be given by or at the direction of the President, the Secretary, or the officer or person calling the meeting, to each shareholder of record entitled to vote at the meeting. Notice may be communicated in person; by telephone, telegraph, or other form of electronic communication; by mail. If the notice is mailed at least 30 days before the date of the meeting, it may be done by a class of United States mail other than first-class. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the shareholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid.

 

2.6. Waiver of Notice. The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though a meeting was duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents, or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

2.7. Quorum. Shares entitled to vote may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Unless otherwise provided by law, a majority of the votes entitled to be cast on the matter constitutes a quorum of that voting group for that matter. In no event shall a quorum consist of less than one-third of the shares entitled to vote. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new date is or must be set for that adjourned meeting. If a quorum exists, action on a matter (other than the election of directors) is approved if the votes cast favoring the action exceed the votes cast opposing the action, unless the law requires a greater number of affirmative votes. The holders of a majority of the shares represented, and who would be entitled to vote at a meeting if a quorum were present, where a quorum is not present, may adjourn such meeting from time to time.

 

2.8. Voting of Shares. Except as provided below or the law provides otherwise, each outstanding share, regardless of class, is entitled to one vote on each matter submitted to a vote at a meeting of the shareholders. Only shares are entitled to vote.

 

2.8.1. The shares of a corporation are not entitled to vote if they are owned, directly or indirectly, by a second corporation, domestic or foreign, and the first

 


 

corporation owns, directly or indirectly, a majority of the shares entitled to vote for the directors of the second corporation. This does no limit the power of a corporation to vote any shares, including its own shares, held by it in a fiduciary capacity.

 

2.8.2. Redeemable shares are not entitled to vote on any matter, and shall not be deemed to be outstanding, after notice of redemption is mailed to the holders thereof and a sum sufficient to redeem such shares has been deposited with a bank, trust company, or other financial institution upon an irrevocable obligation to pay the holders the redemption price upon surrender of the shares.

 

2.8.3. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent, or proxy as the bylaws of the corporate shareholder may prescribe, or in the absence of any applicable provision, by such person as the board of directors of the corporate shareholder may designate. In the absence of any such designation or in case of conflicting designation by the corporate shareholder, the chairman of the board, the president, any vice president, the secretary, and the treasurer of the corporate shareholder, in that order, shall be presumed to be fully authorized to vote such shares.

 

2.8.4. Shares held by an administrator, executor, guardian, personal representative, or conservator may be voted by him, either in person or by proxy, without a transfer of such shares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him without a transfer of such shares into his name or the name of his nominee.

 

2.8.5. Shares held by or under the control of a receiver, a trustee in bankruptcy proceedings, or an assignee for the benefit of creditors may be voted by him without the transfer thereof into his name.

 

2.9. Voting for Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to vote, in person or by proxy, the number of shares owned by him for as many persons as there are directors to be elected, and for whose election he has a right to vote.

 

2.10. Proxies. Every person entitled to vote shall have the right to do so by either in person or by proxy executed in writing by such person or by his duly authorized attorney-in-fact. Each proxy shall be revocable unless expressly provided therein to be irrevocable and unless otherwise made irrevocable by law. Each proxy shall be filed with the Secretary of the Corporation prior to, or at the time of, the meeting.

 

2.11. Action Without Meeting. Any action required by law to be taken at an annual or special meeting of the shareholders, or any action which may be taken at a meeting of the shareholders, may be taken without a meeting, without prior notice, and without a vote if the action is taken by the holders of outstanding stock entitled to vote thereon having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. In order to be

 

3


 

effective the action must be evidenced by one or more written consents describing the action taken, dated and signed by approving shareholders having the requisite number of votes entitled to vote thereon, and delivered to the corporation by delivery to its principal office in this state, its principal place of business, the corporate secretary, or other officer or agent of the corporation having custody of the book in which proceedings of meetings of shareholders are recorded.

 

2.12. Record Dates. For the purpose of determining shareholders entitled to notice of, or to vote at, any meeting of shareholders of any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period not to exceed fifty (50) days. If the stock transfer books are closed for the purpose of determining shareholders entitled to notice of, or to vote at, a meeting of shareholders, the books shall be closed for at least ten (10) days immediately preceding the meeting.

 

2.12.1. In lieu of closing the stock transfer books, the Board of Directors may fix in advance as the record date for determination of shareholders, a date in any case to be not less than ten (10) days prior to the date on which the particular action requiring the determination of shareholders is to be taken.

 

2.12.2. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of, or to vote at, a meeting of shareholders, or entitled to receive payment of a dividend, the date on which notice of the meeting is mailed and the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for determination of shareholders.

 

2.12.3. When a determination of shareholders entitled to vote at any meeting of shareholders has been made, as provided in this section, such determination shall apply to any adjournment thereof, except where the determination has been made through the closing of stock transfer books and the stated period in accordance with the provisions of this section.

 

ARTICLE 3
DIRECTORS

 

3.1. Powers. The business and affairs of the Corporation shall be managed by its Board of Directors, which may exercise all powers of the Corporation and do all lawful acts and things as are not by law or by the Articles of Incorporation or by these Bylaws directed or required to be exercised or done by the shareholders.

 

3.2. Number and Election of Directors. The number of directors constituting the initial Board of Directors of the Corporation shall be as set forth in the Articles of Incorporation. However, the number may be changed by the Board of Directors from time to

 

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time by appropriate resolution of the Board of Directors. In no event shall there ever be less than one (1) member or more than five (5) members of the Board of Directors. The Directors shall be elected at the annual meeting of the shareholders, and shall hold office until the next succeeding annual meeting and until his successor shall have been elected and qualified. Directors need not be shareholders of the Corporation.

 

3.3. Removal of Directors. Any Director may be removed, with or without cause, by the affirmative vote of the holders of a majority of the shares represented at any shareholders’ meeting at which a quorum is present, provided that the proposed removal is stated in the notice of the meeting.

 

3.4. Elections to Fill Vacancies. Any vacancy occurring on the Board of Directors may be filled by the affirmative vote of a majority of the remaining Directors though less than a quorum of the Board of Directors, or by a sole remaining Director. A Director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of Directors may be filled by election at an annual or special meeting of shareholders called for that purpose, or may be filled by the Board of Directors for a term of office continuing only until the election of one or more directors by the shareholders; provided, however, that the Board of Directors may not fill more than two (2) such directorships during the period between any two successive annual meetings of the shareholders.

 

3.5. Location of Meetings. Meetings of the Board of Directors, regular or special, may be held at the principal office of the Corporation or at any other location which has been designated by the Board of Directors. Members of the Board of Directors or of committees thereof may participate in and hold a meeting of the Board of Directors or committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

 

3.6. First Meeting of Newly Elected Board. The first meeting of each newly elected Board of Directors shall be held at such time and place directly following the annual meeting of the shareholders or as shall be fixed by the vote of the shareholders at their annual meeting, and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided that a quorum shall be present. In the event such meeting is not held after the annual meeting of the shareholders or in the event of a failure of the shareholders to fix the time and place of the first meeting of the newly elected Board of Directors, or in the event the meeting is not held at the time and place so fixed by the shareholders, such meeting may be held at the time and place specified in a notice given as provided for special meetings of the Board of Directors, or as specified in a written waiver signed by all of the Directors.

 

3.7. Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such times and places as shall, from time to time, be determined by the Board of Directors.

 

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3.8. Special Meetings. Special meetings of the Board of Directors may be called by the President or if he is absent or unable or refuses to act, by any Vice President or by any two (2) Directors. Notice of special meetings of the Board of Directors may be given personally, in writing or by facsimile, and shall be given to each Director at least forty-eight (48) hours before the date of the meeting. Notice shall be given by the person calling the meeting or by the Secretary. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in any notice or waiver of notice, except as may otherwise be expressly provided by law, the Articles of Incorporation, or these Bylaws.

 

3.9. Quorum. A majority of the Directors shall constitute a quorum for the transaction of business, and the act of majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless a greater number is required by law, the Articles of Incorporation or these Bylaws. If a quorum shall not be present at any meeting or the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement thereof at the meeting, until a quorum shall be present.

 

3.10. Action Without Meeting. Any action that may be taken by the Board of Directors at a meeting may be taken without a meeting if a consent in writing setting forth the actions so taken shall be signed by all of the directors.

 

3.11. Compensation of Directors. Directors, as such, shall not receive any salary for their services, but, by resolution of the Board of Directors may receive a fixed sum and necessary expenses of attendance of each regular or special meeting of the Board of Directors. Members of the executive committee, by resolution of the Board of Directors, may be allowed like compensation for attending committee meetings. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

 

ARTICLE 4
NOTICES

 

4.1. Content and Method. Notices to directors and shareholders shall be in writing unless otherwise provided in these Bylaws, shall specify the time and place of the meeting, and shall be delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the Corporation. Notice by mail shall be deemed given at the time when the notice is placed in the United States mail, postage prepaid. Notice to directors may also be given by facsimile.

 

4.2. Wavier of Notice. Whenever any notice is required to be given to any shareholder or director under the provisions of applicable statutes, the Articles of Incorporation or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of notice.

 

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4.3. Attendance Construed as Wavier of Notice. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

 

ARTICLE 5
OFFICERS

 

5.1. Titles. The officers of the Corporation shall consist of a President, one (1) or more Vice Presidents, a Secretary, a Treasurer and such other officers as are contemplated by Section 5.03 hereof, each of whom shall be elected by the Board of Directors and hold office until he shall resign or shall be removed or otherwise disqualified to serve. Any two or more offices may be held by the same person.

 

5.2. Election. The Board of Directors, at its first meeting after each annual meeting of shareholders, shall elect a President, one (1) or more Vice Presidents (if any), a Secretary and a Treasurer, one (1) or more Assistant Secretaries and one (1) or more Assistant Treasurers, none of whom needs to be a member of the Board of Directors, and may appoint a member of the Board of Directors as Chairman of the Board.

 

5.3. Other Officers. Such other officers and assistant officers and agents, as may be deemed necessary, may be elected or appointed by the Board of Directors.

 

5.4. Compensation. The compensation of the key officers of the Corporation shall be fixed by the Board of Directors, but the compensation of all minor officers and all other agents and employees of the Corporation may be fixed by the President, unless by resolution of the Board of Directors shall determine otherwise; provided, however, that without the express approval of the Board of Directors, the President may not enter into any employment agreement on behalf of the Corporation with any person which may not be terminated by the Corporation, either at will or upon thirty (30) days written notice.

 

5.5. Term of Office. Each officer of the Corporation shall hold office until his successor is chosen and qualifies, or until his death or removal or resignation from office. Any officer may be removed by a majority vote of the entire Board of Directors whenever in its judgment the best interests of the Corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Any vacancy occurring in an office of the Corporation for any reason may be filled by the Board of Directors.

 

5.6. Chairman of the Board and President. The Board of Directors may designate whether the Chairman of the Board, if one is appointed, or the President shall be the chief executive officer of the Corporation. In the absence of a contrary designation, the President shall be the chief executive officer. The chief executive officer shall preside at all meetings of the shareholders, and of the Board of Directors unless a Chairman of the Board is appointed, and shall have such other powers and duties as usually pertain to his office or as may be assigned to him from time to time by the Board of Directors. The President shall have such

 

7


 

powers and duties as usually pertain to that office, except as the same may be modified by the Board of Directors. Unless the Board of Directors shall otherwise direct, the President shall have general and active management responsibility for the business of the Corporation, and shall see that all orders and resolutions of the Board of Directors are carried into effect.

 

5.7. Added Powers of the President. The President, and the Chairman of the Board, in the event that he shall have been designated chief executive officer, shall execute, with the Secretary or any other officer of the Corporation so authorized by the Board of Directors, certificates for shares of the Corporation, and any deeds, mortgages, bonds, contracts or other instruments that the Board of Directors has authorized for execution, except when the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise signed or executed.

 

5.8. Vice Presidents. In the event that the Board of Directors shall provide for Vice Presidents, then each of the Vice Presidents, in the order of rank as fixed by the Board of Directors, unless otherwise determined by the Board of Directors, shall in the absence or disability of the President, serve in the capacity of the President and perform the duties and exercise the powers of the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors shall from time to time prescribe.

 

5.9. Secretary. The Secretary shall (a) attend all meetings of the Board of Directors and of the shareholders, and shall record all votes and keep the minutes of all such proceedings in one or more books kept for that purpose; (b) perform like services for the executive committee, if any; (c) give or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors; (d) keep in safe custody the seal of the Corporation, and when authorized by the Board of Directors, affix the same to any instrument requiring it and when so affixed, it shall be attested by the Secretary’s signature, or by the signature of the Treasurer, any Assistant Secretary or Assistant Treasurer; and (e) perform all duties incidental to the office of Secretary and such other duties as, from time to time, may be assigned to the Secretary by the President or Board of Directors, under whose supervision the Secretary shall function.

 

5.10. Assistant Secretaries. Each Assistant Secretary, if any, in the order fixed by the Board of Directors, unless otherwise determined by the Board of Directors, may perform the duties and exercise the powers of the Secretary, and shall perform such other duties and have such other powers as the Board of Directors may, from time to time prescribe.

 

5.11. Treasurer. The Treasurer shall have custody of the Corporation funds and securities, maintain or cause to be maintained, accounts of the assets and business transactions of the Corporation, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, shall deposit all money and other valuable effects in the name, and to the credit of, the Corporation in such depositories as may be designated by the Board of Directors and shall perform all such other duties, as from time to time, may be assigned to the Treasurer by the Board of Directors.

 

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The Treasurer shall deposit all monies and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, shall render to the President and Board of Directors, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

5.12. Disbursements and Accounting. The Treasurer shall disburse such funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for all disbursements, and shall render to the President and the Board of Directors at the regular meetings of the Board of Directors, or whenever the Board of Directors may require, an account of all of his transactions as Treasurer, and of the financial condition of the Corporation.

 

5.13. Treasurer’s Bond. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory of the Board of Directors for the faithful performance of the duties of his office, and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

 

5.14. Assistant Treasurers. Each Assistant Treasurer, if any, in the order fixed by the Board of Directors, unless otherwise determined by the Board of Directors, shall in the absence or disability of the Treasurer perform the duties and exercise the powers of the Treasurer, and shall perform such other duties and have such other powers as the Board of Directors may from time to time, prescribe.

 

ARTICLE 6
CERTIFICATES REPRESENTING SHARES

 

6.1. Description. The Corporation shall deliver certificates representing all shares to which shareholders are entitled. Certificates shall be signed by the President or a Vice President, and the Secretary or an Assistant Secretary of the Corporation, and may be sealed with the seal of the Corporation or a facsimile thereof. No certificate shall be issued for any share until the consideration therefor has been fully paid. Each certificate shall be consecutively numbered and shall be entered in the books of the Corporation as issued. Each certificate representing shares shall state upon the face thereof that the Corporation is organized under the laws of the State of Florida, the name of the person to whom issued, the number and class of shares and the designation of the series, if any, which such certificate represents, and the par value of each share or a statement that shares are without par value, and shall further contain on the face or back of the certificate a statement of all additional information required by statute to be set forth.

 

6.2. Facsimile Signatures. The signatures of the President or a Vice President, and the Secretary or Assistant Secretary upon a certificate may be facsimiles, if the certificate

 

9


 

is countersigned by a transfer agent or assistant transfer agent, or registered by a registrar other than the Corporation or an employee of the Corporation. In the event that an officer who has signed or whose facsimile signature has been placed upon a certificate shall cease to be such officer before the certificate is issued, the certificate may be issued by the Corporation with the same effect as if he were such officer at the date of the issuance.

 

6.3. Lost Certificates. The Board of Directors may direct new certificate(s) to be issued in place of any certificate(s) previously issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of the fact by the person claiming the certificate(s) to be lost or destroyed. When authorizing such issuance of new certificate(s), the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of the lost or destroyed certificate(s), or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum and form and with such sureties as it may direct as an indemnity against any claim that may be made against the Corporation with respect to the certificate(s) alleged to have been lost or destroyed.

 

6.4. Transfer of Shares. Shares of stock shall be transferable only on the books of the Corporation by the holder thereof in person or by his duly authorized attorney-in-fact. Upon surrender to the Corporation or the transfer agent of the Corporation, of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

 

6.5. Registered Owners. The Corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares to receive dividends and to vote as such owner, and shall not be bound to recognize any equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Florida.

 

ARTICLE 7
GENERAL PROVISIONS

 

7.1. Dividends. The Board of Directors may declare and the Corporation may pay dividends on its outstanding shares in cash, property or its own shares, pursuant to law and subject to the provisions of its Articles of Incorporation.

 

7.2. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or to execute and deliver any instrument in the name, and on behalf of, the Corporation. This authority may be general or confined to specific instances.

 

7.3. Loans. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors or any executive committee. This authority may be general or confined to specific instances.

 

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7.4. Reserves. The Board of Directors may by resolution create a reserve or reserves out of earned surplus for any purpose or purposes, and may abolish any such reserve in the same manner.

 

7.5. Financial Reports. The Board of Directors must, when requested by the holders of at least one-third of the outstanding shares of the Corporation, present written reports concerning the situation and business of the Corporation.

 

7.6. Signatures. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or other person or persons as the Board of Directors may, from time to time, designate.

 

7.7. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board of Directors.

 

7.8. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation and shall be in the form determined by the Board of Directors. The seal may be used by causing it, or a facsimile thereof, to be impressed, affixed or in any other manner reproduced.

 

ARTICLE 8
INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

8.1. Indemnification of Directors, Officers and Employees. To the extent permitted by law, the Board of Directors shall authorize the Corporation to indemnify any present or former director, officer, employee, or agent of the Corporation against judgments, penalties (including excise and similar taxes), fines, settlements, and reasonable expenses actually incurred by the person in connection with a proceeding in which the person was, is, or is threatened to be made a named defendant or respondent because the person is or was a director, officer, employee, or agent of the Corporation.

 

8.2. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who holds or who has held any position with the Corporation against any liability incurred by him in any such position, or arising out of his status as such.

 

8.3. Reports. Indemnification payments, advance payments and insurance purchases and payments made under this Article shall be reported in writing to the shareholders of the Corporation with the next notice of annual meeting, or within six (6) months, whichever is sooner.

 

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ARTICLE 9
AMENDMENTS

 

These Bylaws may be altered, amended or repealed, and new Bylaws may be adopted by the affirmative vote of majority of either the Board of Directors or the shareholders, present at any meeting at which a quorum of each respective body is present, provided that notice of the proposed alteration, amendment, repeal or adoption shall be contained in the notice of the meeting. This power to alter, amend or repeal the Bylaws, and to adopt new Bylaws, may be modified or divested by action of shareholders representing a majority of the stock of the Corporation taken at any regular or special meeting of the shareholders.

 

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CERTIFICATION OF THE
ADOPTION OF THE BYLAWS OF
KENDALL GOLF MANAGEMENT, INC.
F/K/A MATANZAS WOODS MANAGEMENT CORP.
a Florida Corporation

 

The undersigned, Secretary of the Corporation, hereby certifies that the foregoing is a true and correct copy of the Bylaws of the Corporation amended and adopted as of July 10, 1995, by (i) the Board of Directors of the Corporation, (ii) the Incorporator of the Corporation, and (iii) the Shareholders entitled to exercise a majority of the voting power of the Corporation.

 

EXECUTED this 10th day of July, 1995.

 

 

 

/s/ Terry A. Taylor

 

Terry A. Taylor, Secretary

 


 EX-3.117(A) 234 a2202241zex-3_117a.htm EX-3.117(A)

Exhibit 3.117(a)

 

CERTIFICATE REGARDING

 

AMENDED AND RESTATED CHARTER

 

OF

 

NASHVILLE CLUB MANAGEMENT, INC.

 

Pursuant to Section 48-20-107 (d) of the Tennessee Business Corporation Act, the undersigned, in connection with the filing of the Amended and Restated Charter of Nashville Club Management, Inc., does hereby certify as follows:

 

1.                                       The Amended and Restated Charter contains an amendment or amendments to the Charter requiring shareholder approval.

 

2.                                       The name of the Corporation is:  Nashville Club Management, Inc.

 

3.                                       The text of each amendment adopted is as follows:

 

See Exhibit A attached hereto and incorporated herein by reference.

 

4.                                       The date of each amendment’s adoption is November 9, 2010.

 

5.                                       Each amendment was duly adopted by the shareholder.

 

 

Secretary

 

/s/ Ingrid Keiser

Signer’s Capacity

 

Signature

 

 

 

 

 

 

November     , 2010

 

Ingrid Keiser

Date

 

Name of Signer (Typed or Printed)

 

 

 

0143206

 

 

Corporation’s Control Number

 

 

(If Known)

 

 

 


 

EXHIBIT A

 

AMENDED AND RESTATED CHARTER

 

OF

 

NASHVILLE CLUB MANAGEMENT, INC.

 

(For — Profit)

 

Pursuant to Section 48-20-107 of the Tennessee Business Corporation Act, this Amended and Restated Charter amends and restates the original Articles of Incorporation of Nashville Club Management, Inc. (the “Corporation”) filed on June 26, 1984, as heretofore amended, as set forth herein.

 

1.                                       The name of the corporation is Nashville Club Management, Inc.

 

2.                                       The Corporation is a for - profit corporation formed under the laws of Tennessee, and its principal office address in Tennessee is Suntrust Bank Building, 11th Floor, Nashville, Tennessee 37219.

 

3.                                       The text of the Amended and Restated Charter of Nashville Club Management, Inc. is as follows:

 

FIRST.  The name of the Corporation is Nashville Club Management, Inc.

 

SECOND.  The street address and zip code of the Corporation’s registered office in the State of Tennessee is 2908 Poston Avenue in the City of Nashville, County of Davidson, 37203.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs in the City of Nashville, State of Tennessee, including the sports or business club commonly known as Nashville City Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and

 

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all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Tennessee Business Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class of shares that together have unlimited voting rights and are entitled to receive the net assets of the Corporation upon dissolution.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Tennessee, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  Reserved.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the

 

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extent such elimination or limitation of personal liability is not permitted under the Tennessee Business Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Charter, and other provisions authorized by the laws of the State of Tennessee at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Charter in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, or sequestrator (or other similar official) of this Corporation for a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  This Amended and Restated Charter was duly approved by the Board of Directors and the shareholder of the Corporation by that certain Consent Action dated November 9, 2010, and pursuant to Section 48-20-107 of the Tennessee Business Corporation Act.  This Amended and Restated Charter supersedes the original articles of incorporation and all amendments to them.

 

SIXTEENTH.  The Corporation is for profit.

 

SEVENTEENTH.  The street address and zip code of the principal office of the Corporation is Suntrust Bank Building, 11th Floor, Nashville, Tennessee 37219.

 

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IN WITNESS WHEREOF, the undersigned, being a duly authorized Officer of the Corporation, has executed this Amended and Restated Charter this 10th day of November, 2010.

 

 

Secretary

 

/s/ Ingrid Keiser

Signer’s Capacity

 

Ingrid Keiser

 

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 EX-3.117(B) 235 a2202241zex-3_117b.htm EX-3.117(B)

Exhibit 3.117(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

NASHVILLE CLUB MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Tennessee, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the charter or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the charter or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the charter, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the charter, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.     Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder which list must be available for inspection beginning at least two (2) business days after notice of the meeting is given to which the list was prepared and continuing through the meeting. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled

 

3


 

to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. Unless otherwise restricted by the charter, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote (except that at least ten (10) days notice must be given to any nonvoting shareholders if required by the Tennessee Business Corporation Act or the charter), if all shareholders entitled to vote on the action consent to taking such action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation for inclusion the minutes or filing with the corporate records by delivery to its registered office in the State of Tennessee, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

4


 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the charter, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Tennessee and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Tennessee whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the charter, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the charter or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may create one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The creation of a committee and appointment of a member or members to it must be approved by the greater of (a) a majority of all of the directors in office when the action is taken, or (b) the number of directors required by the charter or by-laws to take action pursuant to Section 2.6 hereof. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

12


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the charter, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, unless the charter or the Tennessee Business Corporation Act reserves this power exclusively to the shareholders in whole or in part. The shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.118(A) 236 a2202241zex-3_118a.htm EX-3.118(A)

Exhibit 3.118(a)

 

MA SOC Filing Number: 201017449710

 

Date: 11/12/2010 5:27:00 PM

 

D

 

PC

The Commonwealth of Massachusetts

 

William Francis Galvin

 

Secretary of the Commonwealth

 

One Ashburton Place, Boston, Massachusetts 02108-1512

 

FORM MUST BE TYPED

 

Restated Articles of Organization

 

FORM MUST BE TYPED

(General Laws Chapter 156D, Section 10.07; 950 CMR 113.35)

 

(1)                     Exact name of corporation: New England Country Club Management, Inc.

 

(2)                     Registered office address: 84 State Street, Boston, MA 02109

(number, street, city or town, state, zip code)

 

(3)                     Date adopted: November 9, 2010

(month day, year)

 

(4)                     Approved by:

 

(check appropriate box)

 

o                                    the directors without shareholder approval and shareholder approval was not required;

 

OR

 

x                                  the board of directors and the shareholders in the manner required by G.L. Chapter 156D and the corporation’s articles of organization,

 

(5)                     The following information is requited to be included in the articles of organization pursuant to G.L Chapter 156D, Section 2.02 except that the supplemental information provided for in Article VIII is not required:”

 

ARTICLE I

 

The exact name of the corporation is:

 

New England Country Club Management, Inc.

 

ARTICLE II

 

Unless the articles of organization otherwise provide, all corporations formed pursuant to G.L. Chapter 156D have the purpose of engaging in any lawful business. Please specify if you want a more limited purposes;**

 

Sea Article SECOND in Exhibit A attached hereto.

 

*

Changes to Article VIII must be made by filing a statement of charge of supplemented information form.

**

Professional corporations governed by G.L. Chapter 156A and must specify the professional activities of the corporation.

 

 

 

BC

 

 


 

ARTICLE III

 

State the total number of shares and par value, if any, of each class of stock that the corporation is authorized to issue. All corporations must authorize stock. If only one class or series is authorized, it is not necessary to specify any particular designation.

 

WITHOUT PAR VALUE

 

WITH PAR VALUE

 

TYPE

 

NUMBER OF SHARES

 

TYPE

 

NUMBER OF SHARES

 

PAR VALUE

 

 

 

 

 

Common

 

1,000

 

$

1.00

 

 

ARTICLE IV

 

Prior to the issuance of shares of any class or series, the articles of organization must set forth the preferences, limitations and relative rights of that class or series. The articles may also limit the type or specify the minimum amount of consideration for which shares of any class or series maybe issued. Please set forth the preferences, limitations and relative rights of each class or series and, if desired, the required type and minimum amount of consideration to be received.

 

Not Applicable

 

ARTICLE V

 

The restrictions, if any, imposed by the articles or organization upon the transfer of shares of any class or series of stock are

 

Not Applicable

 

ARTICLE VI

 

Other lawful provisions, and if there are no such provisions, this article may be left blank.

 

See Articles SIXTH-A through SIXTH-I in Exhibit A attached hereto.

 

Note: The proceeding six (6) articles are considered to be permanent and may be changed only by filing appropriate articles of amendment.

 

* G.L. Chapter 156D eliminates the concept of par value, however a corporation may specify par value in Article III, Ser G.L. Chapter 156D, Section 6.21, and the comments relative thereto.

 


 

ARTICLE VII

 

The effective date of organization of the corporation is the date and time the articles were received for filing if the articles are not rejected within the time prescribed by law. If a later effective date is desired, specify such date, which may not be later than the 90th day after the articles are received for filing.

 

It is hereby certified that these restated articles of organization consolidate all amendments into single document. If a new amendment authorizers on exchange, or affects a reclassification or cancellation, of issued shares, provisions for implementing that action are set forth in these restated articles unless contained in the text of the amendment.

 

Specify the number(s) of the article(s) being amended: ARTICLES SECOND AND SIXTH

 

Signed by:

/s/ Ingrid Keiser

 

 

(signature of authorized individual)

 

 

 

o

Chairman of the board of directors,

 

 

 

 

o

President,

 

 

 

 

x

Other officer,

 

 

 

 

o

Court-appointed fiduciary.

 

 

 

on this 10th day of November, 2010

 

Signature page to Restated Articles of Incorporation—New England Country Club Management Inc.

 


 

EXHIBIT A TO ARTICLES OF AMENDMENT

 

FIRST. The name of the corporation is New England Country Club Management, Inc. (the “Corporation”).

 

SECOND. The Corporation has been formed for the following purposes;

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Ipswich Country Club, in the City of Ipswich, State of Massachusetts (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Massachusetts Business Corporation Act g.

 

THIRD. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of S1.00 per share, and are to be of one class.

 

FOURTH. [Reserved].

 

FIFTH. [Reserved].

 

SIXTH-A. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH-B.

 

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(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

SIXTH-C. In furtherance and not in limitation of the powers conferred by the laws of the State of Massachusetts, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

SIXTH-D. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

SIXTH-E. [Reserved].

 

SIXTH-F. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Massachusetts Business Corporation Act as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely effect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

SIXTH-G. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Organization, and other provisions authorized by the laws of the State of Massachusetts at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Organization in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

SIXTH-H. [Reserved].

 

SIXTH-I. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies (, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become

 

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due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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THE COMMONWEALTH OF MASSACHUSETTS

 

I hereby certify that, upon examination of this document, duly submitted to me, it appears that the provisions of the General Laws relative to corporations have been complied with, and I hereby approve said articles; and the filing fee having been paid, said articles are deemed to have been filed with me on:

 

November 12, 2010 05:27 PM

 

 

/s/ William Francis Galvin

 

WILLIAM FRANCIS GALVIN

 

 

 

Secretary of the Commonwealth

 


 EX-3.118(B) 237 a2202241zex-3_118b.htm EX-3.118(B)

Exhibit 3.118(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

NEW ENGLAND COUNTRY CLUB MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Massachusetts, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.     Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.   Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Massachusetts, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Massachusetts and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Massachusetts whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.119(A) 238 a2202241zex-3_119a.htm EX-3.119(A)

Exhibit 3.119(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

NORTHWOOD MANAGEMENT CORP.

 

Pursuant to Section 14-2-1007 of the Georgia Business Corporation Code, these Amended and Restated Articles of Incorporation amend and restate the existing Amended and Restated Articles of Incorporation filed on February 21, 2007, as set forth herein.

 

FIRST.  The name of the corporation is Northwood Management Corp. (the “Corporation”).

 

SECOND.  [Reserved.]

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Northwood Country Club, in the City of Lawrenceville, State of Georgia (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Georgia Business Corporation Code.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved.]

 


 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Georgia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the Shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its Shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Georgia as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Georgia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon Shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved.]

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or

 

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state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 14-2-1003 of the Georgia Business Corporation Code.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

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OFFICER’S CERTIFICATE

 

In accordance with Section 14-2-1007 of the Georgia Business Corporation Code, the undersigned, as the duly elected Secretary of Northwood Management Corp., (the “Corporation”), hereby submits these Amended and Restated Articles of Incorporation of the Corporation for filing with the Secretary of State of the State of Georgia for purposes of amending the Articles of Incorporation filed on February 21, 2007, in the form of the Amended and Restated Articles of Incorporation as attached hereto.

 

The Amended and Restated Articles of Incorporation contain an amendment that requires shareholder approval.

 

The Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010.

 

The Amended and Restated Articles of Incorporation were approved by the shareholders of the Corporation on November 9, 2010 in accordance with the provisions of Section 14-2-1003 of the Georgia Business Corporation Code.

 

Dated:  November 10th, 2010

 

 

NORTHWOOD MANAGEMENT CORP.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 EX-3.119(B) 239 a2202241zex-3_119b.htm EX-3.119(B)

Exhibit 3.119(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

NORTHWOOD MANAGEMENT CORP.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of Shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Georgia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of Shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of Shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever Shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of Shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of Shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares

 


 

of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the Shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of Shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of Shareholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of Shareholders or to express consent to corporate action in writing without a meeting may appoint a proxy to vote or otherwise act for the stockholder by signing an appointment form or by an electronic transmission, but no such proxy shall be voted or acted upon after 11 months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of Shareholders need not be by written ballot. At all meetings of Shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the Shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the Shareholders entitled to notice of or to vote at

 

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any meeting of Shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of Shareholders entitled to vote at any meeting of Shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of Shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining Shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining Shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of Shareholders of record entitled to notice of or to vote at a meeting of Shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of Shareholders, a complete list of the Shareholders entitled to vote at the meeting, arranged in alphabetical order, arranged by voting group (and within each voting group by class or series of stock) and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of Shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the Shareholders entitled to examine the list of Shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of Shareholders.

 

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Section 1.10. Action By Written Consent of Shareholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Georgia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of Shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Not more than 10 days after the taking of such action without a meeting, notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those Shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of Shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of Shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of Shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the Shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of Shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of Shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of Shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of Shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be Shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the Shareholders thereafter, the Shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of Shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Georgia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Georgia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing describing the action taken and signed by each director, or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the

 

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corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law or under O.C.G.A. § 14-2-825, and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of Shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

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Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the reasonable expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon a written affirmation of his/her good faith belief that he or she has met the relevant standard of conduct described in O.C.G.A. § 14-2-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by O.C.G.A. § 14-2-202, and upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this

 

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Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of Shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and Shareholders shall be in writing and delivered personally or mailed to the directors or Shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

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Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the Shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the Shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.120(A) 240 a2202241zex-3_120a.htm EX-3.120(A)

Exhibit 3.120(a)

 

Return to:

 

CSC-Lawyers Incorporating Service

601 Abbott Road

East Lansing, MI  48823

 

RESTATED ARTICLES OF INCORPORATION

 

OF

 

OAK POINTE COUNTRY CLUB, INC.

 

Oak Pointe Country Club, Inc., for the purposes of amending and restating its Articles of Incorporation, pursuant to Section 641 of the Business Corporation Act of the State of Michigan, hereby executes these Restated Articles of Incorporation:

 

1.                                       The present name of the corporation is Oak Pointe Country Club, Inc.

 

2.                                       The identification number assigned by the Bureau is 399319.

 

3.                                       The Corporation does not have any former names.

 

4.                                       The date of filing the original Articles of Incorporation was January 2, 1992.

 

The following Restated Articles of Incorporation supersede the Articles of Incorporation as amended and shall be the Articles of Incorporation for the corporation:

 

FIRST.  The name of the corporation is Oak Pointe Country Club, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of Michigan is 601 Abbott Road in the City of East Lansing, County of Ingham, 48823.  The name of its registered agent at such address is CSC-Lawyers Incorporating Service (Company).

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Oak Pointe Country Club, in the City

 

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of Brighton, State of Michigan (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Act of the State of Michigan.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, and are to be of one class.

 

FIFTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

SEVENTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Michigan, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

EIGHTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take

 

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all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH.  Reserved

 

TENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for money damages for any action taken or any failure to take any action as a director, except for liability for any of the following:  (i) the amount of a financial benefit received by a director to which he or she is not entitled; (ii) intentional infliction of harm on the Corporation or the shareholders; (iii) a violation of Section 551 of the Business Corporation Act of Michigan; or (iv) an intentional criminal act.  If the Business Corporation Act of Michigan is amended after the date of these Restated Articles of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Business Corporation Act of Michigan, as so amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Articles of Incorporation, and other provisions authorized by the laws of the State of Michigan at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.  TWELFTH.  Reserved.

 

THIRTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FOURTEENTH.  Any action required or permitted by the Michigan Business Corporation Act to be taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if consents in writing, setting forth the action so taken, are signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take the action at a

 

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meeting at which all shares entitled to vote on the action were present and voted.  A written consent shall bear the date of signature of the shareholder who signs the consent.  Written consents are not effective to take corporate action unless within 60 days after the record date for determining shareholders entitled to express consent to or to dissent from a proposal without a meeting, written consents dated not more than 10 days before the record date and signed by a sufficient number of shareholders to take the action are delivered to the Corporation.  Delivery shall be to the Corporation’s registered office, its principal place of business, or an officer or agent of the Corporation having custody of the minutes of the proceedings of its shareholders.  Delivery made to a Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

 

Prompt notice of the taking of the corporate action without a meeting by less than unanimous consent shall be given to shareholders who would have been entitled to notice of the shareholder meeting if the action had been taken at a meeting and who have not consented to the action in writing.  An electronic transmission consenting to an action must comply with Section 407(3) of the Michigan Business Corporation Act.

 

FIFTEENTH:  These Restated Articles of Incorporation were duly adopted on the 9th day of November, 2010, in accordance with the provisions of Section 642 of the Michigan Business Corporation Act and were duly adopted by the written consent of all the shareholders entitled to vote in accordance with Section 407(2) of the Michigan Business Corporation Act.

 

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Signed this 10th day of November, 2010.

 

 

OAK POINTE COUNTRY CLUB, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

 

 

 

Name of person or organization remitting fees:

Preparer’s name and business telephone number:

 

 

Corporation Service Company

Justin L. Moon

 

(206) 359-8000

 

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 EX-3.120(B) 241 a2202241zex-3_120b.htm EX-3.120(B)

Exhibit 3.120(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

OAK POINTE COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meeting. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Michigan, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons, except as required by applicable law. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting if a notice of the adjourned meeting is not given. If after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Unless otherwise permitted by applicable law, the shares of a corporation shall not be voted on any matter or considered to be outstanding shares for any purpose related to voting if they are owned, directly or indirectly, by a second corporation, and the first corporation owns, directly or indirectly, a majority of the shares entitled to vote for directors of the second corporation.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders. A stockholder also has the right to inspect the list of stockholders at any time for any proper purpose, in accordance with applicable law.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Michigan, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. A written consent shall bear the date of signature of the stockholder who signs the consent. Written consents are not effective to take corporate action unless within 60 days after the record date for determining stockholders entitled to express consent to or to dissent from a proposal without a meeting, written consents dated not more than 10 days before the record date and signed by a sufficient number of stockholders to take the action are delivered to the corporation. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The Board of Directors may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Board of Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting may, and on request of a stockholder entitled to vote at the meeting shall, appoint one or more inspectors to act at the meeting. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting, whether a quorum is present, and the validity of proxies and ballots, (iii) receive and count all votes and ballots, (iv) determine challenges and questions arising in connection with the right to vote (v) determine the result, and (vi) do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting or a stockholder entitled to vote at the meeting, the inspector shall make and execute a written report to the person presiding at the meeting of any of the facts found by the inspector and matters determined by him or her. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is

 

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permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Michigan and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Michigan whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President, a Treasurer and a Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person, but an officer shall not execute, acknowledge or verify an instrument in more than one capacity if the instrument is required by law or the articles of incorporation or by-laws to be executed, acknowledged or verified by two or more officers. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary

 

9


 

or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and which may also be signed by another officer of the corporation, certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Board of Directors may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

12


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally, mailed to the directors or stockholders at their addresses appearing on the books of the corporation or delivered by electronic transmission. Notice to directors may be given by telecopier or telephone.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

14


 EX-3.121(A) 242 a2202241zex-3_121a.htm EX-3.121(A)

Exhibit 3.121(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

OAKMONT MANAGEMENT CORP.

 

Oakmont Management Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Oakmont Management Corp.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF OAKMONT MANAGEMENT CORP.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Oakmont Management Corp.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as Oakmont Country Club, in the City of Corinth, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

3


 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Oakmont Management Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

OAKMONT MANAGEMENT CORP.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

OAKMONT MANAGEMENT CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Oakmont Management Corp.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as Oakmont Country Club, in the City of Corinth, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

2


 

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

ARTICLE XV

 

BANKRUPTCY

 

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The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.121(B) 243 a2202241zex-3_121b.htm EX-3.121(B)

Exhibit 3.121(b)

 

AMENDED AND RESTATED BYLAWS
OF
OAKMONT MANAGEMENT CORP.

 

ARTICLE I
Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such. meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may, consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.122(A) 244 a2202241zex-3_122a.htm EX-3.122(A)

Exhibit 3.122(a)

 

ARTICLES OF RESTATEMENT OF

 

OPERATIONS COMPANY FOR HOMESTEAD, INC.

 

The undersigned corporation, pursuant to Title 13.1, Chapter 9, Article 11 of the Code of Virginia, hereby executes the following articles of restatement and sets forth:

 

1.             The name of the corporation immediately prior to restatement is Operations Company for Homestead, Inc.

 

2.             The restatement contains an amendment to the Articles of Incorporation.

 

3.             The text of the amended and restated Articles of Incorporation is attached hereto.

 

4.             The restatement was adopted by the corporation on November 9, 2010.

 

5.             The restatement was adopted by unanimous consent of the shareholders.

 

 

Executed in the name of the corporation by:

 

 

/s/ Ingrid Keiser

 

November 10, 2010.

 

 

 

Ingrid Keiser

 

Secretary

 

 

0420045 7

 

(telephone number (optional))

 


 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

OPERATIONS COMPANY FOR HOMESTEAD, INC.

 

Pursuant to Section 13.1-711 of the Virginia Stock Corporation Act, the Articles of Incorporation of Operations Company for Homestead Company, Inc. are hereby amended and restated to read as follows:

 

FIRST.  The name of the corporation is Operations Company for Homestead, Inc. (the “Corporation”).

 

SECOND.  A.  The name of the corporation’s registered agent is Corporation Service Company.

 

B.  The registered agent is (mark appropriate box):

 

(1)                         an individual who is a resident of Virginia and

o           an initial director of the corporation.

o            a member of the Virginia State Bar.

OR

(2)          x           a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia.

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)           to own that certain parcel of real property, together with all improvements located thereon, currently known as the Homestead, in the City of Hot Springs, State of Virginia (the “Property”) and to operate or cause the Property to be operated;

 

(b)           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)           to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 


 

(d)           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)           to engage in any lawful activities and to exercise such powers permitted to corporations under the Virginia Stock Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)           The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)           The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided in the By-Laws of the Corporation..

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Virginia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved].

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Virginia Stock Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or

 


 

protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Virginia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Corporate action required or permitted by Chapter 9 of the Virginia Stock Corporation Act may be taken without a meeting and without prior notice, if the corporate action is taken by a written consent signed by shareholders who would be entitled to vote at a meeting of holders of outstanding shares having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take the corporate action at a meeting at which all shareholders entitled to vote thereon were present and voted.

 

SIXTEENTH.  These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 13.1-711 of the Virginia Stock Corporation Act.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 


 EX-3.122(B) 245 a2202241zex-3_122b.htm EX-3.122(B)

Exhibit 3.122(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

OPERATIONS COMPANY FOR HOMESTEAD, INC.

 

Adopted November 3, 2010

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the Commonwealth of Virginia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken unless the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, in which event the Board of Directors shall fix a new record date. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.     Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other

 


 

distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.    Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the

 


 

Commonwealth of Virginia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.    Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.    Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or

 


 

such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 


 

ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications. Except to the extent required by the Corporation’s Articles of Incorporation, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the Commonwealth of Virginia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the Commonwealth of Virginia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.     Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice

 


 

Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the, chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 


 

ARTICLE III

 

Committees

 

Section 3.1.     Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 


 

ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 


 

ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 


 

ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint

 


 

venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 


 EX-3.123(A) 246 a2202241zex-3_123a.htm EX-3.123(A)

Exhibit 3.123(a)

 

STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/23/1998
981110001 - 2874734

 

 

ARTICLES OF INCORPORATION

 

OF

 

OWNERS CLUB ASSET COMPANY

 

ARTICLE I

 

The name of the corporation is Owners Club Asset Company.

 

ARTICLE II

 

The address of its registered office in the State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company.

 

ARTICLE III

 

The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

ARTICLE IV

 

The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00).

 

ARTICLE V

 

The name and mailing address of the incorporator is:

 

Thomas T. Henslee

3030 LBJ Freeway, Suite 840

Dallas, Texas 75234

 

ARTICLE VI

 

The corporation is to have perpetual existence.

 


 

ARTICLE VII

 

The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot.

 

ARTICLE VIII

 

A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit.

 

ARTICLE IX

 

The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware.

 

I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 13th day of March, 1998.

 

 

 

 

/s/ Thomas T. Henslee

 

 

Thomas T. Henslee

 

PREPARED BY H&C

March 13, 1998

 

2


 EX-3.123(B) 247 a2202241zex-3_123b.htm EX-3.123(B)

Exhibit 3.123(b)

 

BYLAWS OF

 

OWNERS CLUB ASSET COMPANY

 

ARTICLE I.

 

OFFICES

 

A.            Principal Office

 

The principal office of the corporation is located at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

B.            Other Offices

 

Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

C.            Registered Office

 

The Registered office of the corporation is located at 1013 Centre Road, Wilmington, Delaware 19805.

 

D.            Registered Agent

 

The name of the registered agent of the corporation at such address is Corporation Service Company.

 

ARTICLE II.

 

SHAREHOLDERS MEETINGS

 

A.            Place of Meetings

 

All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or pursuant to authority hereinafter granted to the Board, or (ii) by the written consent of all persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of the residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

1


 

B.            Time of Annual Meeting — Business Transacted

 

The annual meeting shall be held on the date and the time fixed, from time to time, by the directors, provided that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted that is within the powers of the shareholders. A special meeting shall be held on the date and at the time fixed by the directors.

 

C.            Special Meetings

 

Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

D.            Notice of Meetings

 

Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of share, securities, or any other consideration (other than money) in the process of winding up.

 

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E.             Consent of Absentees

 

The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though it had been held at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

F.             Quorum

 

The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting constitutes a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

G.            Voting

 

Unless a record date for voting purposes be fixed, as thereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

H.            Proxies

 

Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

I.              Adjourned Meetings and Notice Thereof

 

Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

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When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

J.             Action Without Meeting

 

Any action that, under any provision of the Delaware General Corporation Law, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized in writing, signed by all of the persons who would be entitled to vote on that action at a meeting, and filed with the Secretary of the corporation. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the corporation.

 

ARTICLE III.

 

DIRECTORS

 

A.            Directors Defined

 

“Directors,” when used in relation to any power or duty requiring collective action, means “Board of Directors.”

 

B.            Powers

 

Subject to limitation imposed by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

C.            Number of Directors

 

The authorized number of Directors of the corporation shall be not less than one (1) nor more than five (5) until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

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D.            Election and Term of Office

 

The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

E.             Vacancies

 

Vacancies on the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of this term of office.

 

F.             Quorum

 

A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

G.            Place of Meetings

 

Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

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H.            Regular Meetings

 

Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

I.              Call of Special Meeting

 

Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of holding of the meeting.

 

J.             Notice of Adjournment

 

Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

K.            Waiver of Notice: Consent to Meeting

 

The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice of a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

L.            Adjournment

 

A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

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M.           Actions without Meetings

 

Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

N.            Fees and Compensation

 

Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

O.            Indemnification of Directors, Officers and Employees

 

1.             In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of this alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitably merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

2.             Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability

 

7


 

or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interest of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

3.             The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV.

 

OFFICERS

 

A.            Officers

 

The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

B.            Other Officers

 

The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

C.            Removal and Resignation

 

Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

8

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance or such resignation shall not be necessary to make it effective.

 

D.            Vacancies

 

A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

E.             Chairman of the Board

 

The Chairman of the Board, if there shall be such officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

F.             President

 

Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Within this authority and in the course of his duties the President shall be empowered to preside at all meetings of the shareholders and in the absence of the Chairman of the Board, or, if there is none, at all meetings of the Board of Directors, and shall be ex officio a member of all the standing committees, including the Executive Committee, if any.

 

G.            Vice President

 

In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws.

 

H.            Secretary

 

The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may

 

9


 

order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

I.              Treasurer

 

The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

ARTICLE V.

 

EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

A.            Authority for Execution of Instruments

 

The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and that authority may be general or confined to specific instances, and, unless so authorized, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.

 

10


 

B.            Execution of Instruments

 

Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, other corporate instruments or documents, and certificates of shares of stock owned by the corporation shall be executed, signed, or endorsed by the President or any Vice President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal affixed thereto.

 

C.            Bank Accounts and Deposits

 

1.             All funds of the corporation shall be deposited from time to time to the credit of the corporation with such banks, trust companies, or other depositaries as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the corporation to whom that power may be delegated from time to time by the Board of Directors.

 

2.             Endorsements for deposit to the credit of the corporation in any of its duly authorized depositaries may be made without countersignatures by the President or any Vice President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the corporation to whom the Board of Directors, by resolution, shall have delegated that power, or by hand stamped impression in the name of the corporation.

 

3.             All checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors.

 

ARTICLE VI.

 

MISCELLANEOUS

 

A.            Record Date and Closing Stock Books

 

The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any vote at any meeting of shareholders or entitled to notice of any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

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The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

B.            Inspection of Corporate Records

 

The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

C.            Certificates for Shares

 

A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit the holders name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

D.            Transfer of Stock

 

The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

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E.             Lost Certificates

 

New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

F.             Corporate Seal

 

A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

G.            Contracts—Execution of Documents

 

The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or top pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

H.            Representation of Shares of Other Corporations

 

The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized to do so by proxy or power of attorney duly executed by said officers.

 

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I.              Inspection of Bylaws

 

The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VII.

 

AMENDMENTS

 

A.            Powers of Shareholders

 

New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

B.            Power of Directors

 

Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

ACKNOWLEDGED AND ADOPTED effective March 25, 1998.

 

 

 

/s/ James E. Maser

 

 

James E. Maser, Director

 

 

 

 

 

 

 

 

/s/ Kathy Cunningham

 

 

Kathy Cunningham, Director

 

 

 

 

 

 

 

 

/s/ Betty Bullock

 

 

Betty Bullock, Director

 

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 EX-3.124(A) 248 a2202241zex-3_124a.htm EX-3.124(A)

Exhibit 3.124(a)

 

ARTICLES OF RESTATEMENT

OF

PIEDMONT CLUB, INC.

 

Pursuant to Section 55-10-07 of the General Statues of North Carolina, the undersigned corporation hereby submits these Articles of Restatement for the purpose of integrating into one document its original articles of incorporation and all amendments thereto and also for the purpose of amending its articles of incorporation:

 

1.               The name of the corporation is Piedmont Club, Inc. (the “Corporation”).

 

2.               Attached hereto as Exhibit A are the Amended and Restated Articles of Incorporation, which contain amendments to the Articles of Incorporation requiring shareholder approval.

 

3.               The Amended and Restated Articles of Incorporation of the Corporation were adopted by its shareholders on the 9th day of November, 2010, in the manner prescribed by the North Carolina Business Corporation Act.

 

4.               The Amended and Restated Articles of Incorporation do not provide for any exchange, reclassification, or cancellation of issued shares.

 

5.               The Amended and Restated Articles of Incorporation shall be effective upon filing with the North Carolina Secretary of State.

 

 

Dated the 10th day of November, 2010.

 

 

 

PIEDMONT CLUB, INC.

 

 

 

By:

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Title: Secretary

 

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EXHIBIT A

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

PIEDMONT CLUB, INC.

 

The Corporation’s Articles of Incorporation are amended and restated in their entirety as follows:

 

FIRST.  The name of the Corporation is Piedmont Club, Inc.

 

SECOND.  The address of the Corporation’s registered office is 327 Hillsborough Street, Raleigh, North Carolina, 27603-1725, Wake County.  The name of its registered agent at such address is Corporation Services Company.  The address of the Corporation’s principal office is 3030 LBJ Freeway, Dallas, TX, 75234, Dallas County.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Winston-Salem, State of North Carolina, including the sports or business club commonly known as Piedmont Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the North Carolina Business Corporation Act.

 

A-1


 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved.]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of North Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to applicable law and the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the North Carolina Business Corporation Act, as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Articles of Incorporation, and other provisions authorized by the laws of the State of North Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

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THIRTEENTH.  [Reserved.].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  Action required to be taken at a meeting of shareholders may be taken without a meeting and without any prior notice by shareholders having not less than the minimum number of votes that would be necessary to take the action at a meeting at which all shareholders entitled to vote were present and voted.

 

SIXTEENTH.  The Corporation may conduct any transaction or transactions by electronic means, and this provision shall constitute the agreement by the Corporation, its shareholders and directors to the conduct of transactions by electronic means.

 

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 EX-3.124(B) 249 a2202241zex-3_124b.htm EX-3.124(B)

Exhibit 3.124(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

PIEDMONT CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.            Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of North Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.            Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, or within thirty (30) days after the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose or purposes for which it is to be held. The written demand shall cease to be effective on the sixty-first day after the date thereof unless prior to such day the corporation has received effective written requests from shareholders sufficient to call the special meeting. Special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.            Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.            Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are

 


 

announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.            Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares belonging to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.            Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.            Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after eleven (11) months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations

 

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of any share exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.            Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.            List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, not later than two (2) days after notice is given for every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting not later than two (2) days after notice is given for the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal

 

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place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.          Action By Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed (prior to the 61st day after which the first shareholder signs a consent) by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of North Carolina, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given within ten (10) days after action was taken to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting as of the record date for such action as provided in Section 1.8 above.

 

Section 1.11.          Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information

 

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as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.          Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies and representatives or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.            Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.            Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3.            Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of North Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.            Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of North Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.            Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.            Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.            Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.            Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.            Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.            Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person, but no individual may act in more than one capacity where the action of two officers is required. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.     Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any written waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.125(A) 250 a2202241zex-3_125a.htm EX-3.125(A)

Exhibit 3.125(a)

 

[Secretary of State Stamp]

 

STATE OF SOUTH CAROLINA
SECRETARY OF STATE
JIM MILES
AMENDED ARTICLES OF ORGANIZATION
LIMITED LIABILITY COMPANY

 

The limited liability company amends its articles of organization in accordance with § 33-44-204 of the 1976 South Carolina Code, as amended.

 

1.                         The name of the limited liability company is Bellwood Golfers’ Club LLC

 

2.                         The date the articles of organization were filed is December 10, 1997

 

3.                         The articles of organization are amended in the following respects all of which amended provisions may lawfully be included in the articles of organization.

 

The name of the Company should be Piedmont Golfers’ Club LLC

 

 

Date: July 8,1998

 

 

/s/ Gary H. Hall, Jr.

 

 

 

Name

 

 

 

 

 

 

 

Organizer

 

 

 

Capacity

 


 

[Secretary of State Stamp]

 

STATE OF SOUTH CAROLINA
SECRETARY OF STATE
JIM MILES
AMENDED ARTICLES OF ORGANIZATION
LIMITED LIABILITY COMPANY

 

The limited liability company amends its articles of organization in accordance with § 33-44-204 of the 1976 South Carolina Code, as amended.

 

1.                         The name of the limited liability company is Bellwood Farm Golf Course

 

2.                         The date the articles of organization were filed is December 10, 1997

 

3.                         The articles of organization are amended in the following respects all of which amended provisions may lawfully be included in the articles of organization.

 

The name of the Company should be Bellwood Golfers’ Club LLC

 

 

Date: 12/11/97

 

 

/s/ Gary H. Hall, Jr.

 

 

 

Name

 

 

 

 

 

 

 

Organizer

 

 

 

Capacity

 


 

[Secretary of State Stamp]

 

STATE OF SOUTH CAROLINA
SECRETARY OF STATE JIM MILES
ARTICLES OF ORGANIZATION
LIMITED LIABILITY COMPANY

 

The undersigned deliver the following articles of organization to form a South Carolina limited liability company pursuant to § 33-44-202 and § 33-44-203 of the 1976 South Carolina Code, as amended.

 

1.

The name of the limited liability company which complies with § 33-44-105 of the South Carolina Code of 1976 as amended is Bellwood Farm Golf Course, LLC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.

The office of the Initial designated office of the limited liability company in South Carolina is:

 

 

880 South Pleasantburg Drive, Building 1

 

 

 

 

Street Address

 

 

 

 

 

 

 

Greenville

 

 

29607

 

 

 

 

 

City

 

Zip Code

 

 

 

3.

The initial agent for service of process of the limited liability company is:

 

 

Derrell E. Hunter

 

 

 

 

Name

 

 

 

 

 

880 South Pleasantburg Drive, Building 1

 

 

 

 

Street Address

 

 

 

 

 

 

Greenville

 

29607

 

 

 

 

 

City

Zip Code

 

 

 

 

 

 

 

4.

The name and address of each organizer is:

 

 

(a)

 

Cary H. Hall, Jr.

 

 

 

 

Name

 

 

 

 

 

 

 

 

 

 

44 East Camperdown Way

 

 

 

 

Street Address

 

 

 

 

 

 

 

 

 

 

Greenville

 

29602

 

 

 

 

 

City

 

Zip Code

 

 

 

 

 

 

 

 

 

(b)

 

 

 

 

 

 

 

 

 

Name

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Street Address

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

City

 

Zip Code

 

 

 

 

 

 

 

 

 

 

 

(Add additional lines if necessary)

 

 

 

 

 

 

 

5.

x

Check this box only if the company is to be a term company. If so, provide the term

 


 

 

 

specified:

 

 

 

 

 

December 31, 2050

 

 

 

 

 

 

 

 

 

 

 

6.

x

Check this box only if management of the limited liability company is vested in a manager or managers. If this company is to be managed by managers, specify the name and address of each initial manager.

 

 

 

 

 

 

 

 

 

(a)

 

GolfSouth Clubs, LLC

 

 

 

 

Name

 

 

 

 

 

 

 

 

 

 

880 South Pleasantburg Drive, Building 1

 

 

 

 

Street Address

 

 

 

 

 

 

 

 

 

 

 

 

 

Greenville

 

South Carolina

29607

 

 

 

 

City

 

State

Zip Code

 

 

 

 

 

 

 

 

 

(b)

 

 

 

 

 

 

 

 

 

 

Name

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Street Address

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

City

State

Zip Code

 

 

 

 

 

 

 

 

 

(c)

 

 

 

 

 

 

 

 

 

 

Name

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Street Address

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

City

 

State

Zip Code

 

 

 

 

 

 

 

 

 

(d)

 

 

 

 

 

 

 

 

 

 

Name

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Street Address

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

City

 

State

Zip Code

 

 

 

 

 

 

 

 

7.

o

Check this box only if one or more of the members of the company are to be liable for its debts and obligations under § 33-44-303(c). If one or more members are so liable, specify which members, and for which debts, obligations or liabilities such members are liable in their capacity as members.

 

2


 

 

 

 

 

 

 

 

 

8.

Unless a delayed effective date is specified, these articles will be effective when endorsed for filing by the Secretary of State. Specify any delayed effective date and time:

 

 

 

 

 

 

9.

Set forth any other provisions not inconsistent with law which the organizers determine to include, including any provisions that are required or are permitted to be set forth in the limited liability company operating agreement.

 

 

10.

Signature of each organizer:

 

 

 

/s/ Cary H. Hall, Jr.

 

 

Signature of Organizer Cary H. Hall, Jr.

 

 

 

 

 

 

 

 

Signature of Organizer

 

 

 

 

Date:

December 9, 1997

 

 

FILING INSTRUCTIONS

 

1.                          File two copies of this form, the original and either a duplicate original or a conformed copy.

 

2.                          If space on this form in not sufficient, please attach additional sheets containing a reference to the appropriate paragraph in this form, or prepare this using a computer disk which will allow for expansion of the space on this form.

 

3.                          This form must be accompanied by the filing fee of $110.00 payable to the Secretary of State.

 

Form Approved by South Carolina
Secretary of State Jim Miles, June 1996

 

3

 


 EX-3.125(B) 251 a2202241zex-3_125b.htm EX-3.125(B)

Exhibit 3.125(b)

 

THIRD AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

PIEDMONT GOLFERS’ CLUB LLC

 

This Third Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of Piedmont Golfers’ Club LLC (the “Company”), is entered into by FFFC Golf Acquisitions L.L.C., as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on December 10, 1997, the Company executed and filed Articles of Organization (the “Articles of Organization”) with the Secretary of State of the State of South Carolina in accordance with and pursuant to the South Carolina Uniform Limited Liability Company Act of 1996, as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Second Amended and Restated Limited Liability Company Agreement of Piedmont Golfers’ Club LLC dated as of April 1, 2007 (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.               Name.

 

The name of the Company is Piedmont Golfers’ Club LLC.

 

Section 2.               Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.               Registered Office.

 

The address of the registered office of the Company in the State of South Carolina is Corporation Service Company c/o 5000 Thurmond Mall Boulevard, Columbia, Richland County, South Carolina 29201.

 


 

Section 4.               Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of South Carolina is Corporation Service Company, 5000 Thurmond Mall Boulevard, Columbia, Richland County, South Carolina 29201.

 

Section 5.               Members.

 

(a)           The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company effective August 3, 2000.

 

(b)           The Member may act by written consent.

 

Section 6.               Certificates.

 

The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Articles of Organization as provided in the Act.

 

Section 7.               Purposes.  The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)           to own that certain parcel of real property, together with all improvements located thereon, currently known as the Piedmont Golf Club, in the City of Greenville, State of South Carolina (the “Property”) and to operate or cause the Property to be operated;

 

(b)           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)           to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)           to engage in any activities necessary to authorize, execute and deliver any other agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)           to engage in such lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of South Carolina.

 


 

Section 8.               Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.               Management.

 

(a)           Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)           Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)           Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of South Carolina. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)           Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)           Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating

 


 

in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)            Committees of Directors.

 

(i)            The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)           In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)          Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)           Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)           Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)            Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 


 

Section 10.             Reserved. Reserved.

 

Section 11.             Officers.

 

(a)           Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasures) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule D hereto.

 

(b)           President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 1l(c).

 

(c)           Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)           Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 


 

(e)           Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)            Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)           Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the South Carolina Business Corporation Act of 1988.

 

Section 12.             Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.             Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.             Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any

 


 

creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.             Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.             Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate any applicable law.

 

Section 17.             Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.             Reserved.

 

Section 19.             Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (not in competition with the Company) of every kind and description, independently or with others. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.(1)

 

Section 20.             Exculpation and Indemnification.

 

(a)           Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(1) South Carolina Statute § 33-44-409(b) sets forth certain duties of loyalty that may not be waived.

 


 

(b)           To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)           To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)           A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)           To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)            The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.             Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. I if the Member transfers all of its limited liability company interest in the Company pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor

 


 

Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.             Resignation.

 

If the Member to resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.             Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.             Dissolution.

 

(a)           The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 


 

(b)           Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)           In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act.

 

(d)           The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Articles of Organization shall have been canceled in the manner required by the Act.

 

Section 25.             Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.             Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.             Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 28.             Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

 

Section 29.             Reserved.

 

Section 30.             Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of South Carolina (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.             Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 32.             Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.             Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.             Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of South Carolina, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of South Carolina (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend:

 


 

This certificate evidences an interest in Piedmont Golfers’ Club LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of South Carolina, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

FFFC GOLF ACQUISITIONS L.L.C.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to Third A&R LLC Agreement — Piedmont Golfers’ Club LLC

 


 

SCHEDULE A

 

Definitions

 

A.            Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Third Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Articles of Organization” means the Articles of Organization of the Company filed with the Secretary of State of the State of South Carolina on December 10, 1997, as amended or amended and restated from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Company” means Piedmont Golfers’ Club LLC, a South Carolina limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member, in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning set forth in the South Carolina Uniform Limited Liability Company Act of 1996.

 

“Member” means FFFC Golf Acquisitions L.L.C., a Delaware limited liability company and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.            Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital Contribution

 

Membership
Interest

 

FFFC Golf Acquisitions L.L.C.

 

FFFC Golf Acquisitions L.L.C.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$100

 

100%

 

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.             Eric L. Affeldt

 

2.             Eric C. Resnick

 

3.             Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR PIEDMONT GOLFERS’ CLUB LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-2

 

100% of Interests

 

Piedmont Golfers’ Club LLC, a South Carolina limited liability company (the “Company”), hereby certifies that FFFC Golf Acquisitions L.L.C. (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER             , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in Piedmont Golfers’ Club LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of South Carolina, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of South Carolina without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                        ] as of the date set forth below.

 

Dated: as of November         , 2010

 

 

Name:

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE

FOR INTERESTS OF PIEDMONT GOLFERS’ CLUB LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                  (print or typewrite name of Transferee),                                                        (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                              (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                     , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

 

Dated:

 

 

Signature:

 

 

 

(Transferor)

 

 

 

 

Address:

 

 

 

 

 

 

 

 

E-2


 EX-3.126(A) 252 a2202241zex-3_126a.htm EX-3.126(A)

Exhibit 3.126(a)

 

 

Entity #: 2005042
Date Filed: 11/15/2010
Basil L Merenda
Secretary of the Commonwealth

 

PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU

 

Articles of Amendment-Domestic Corporation
(15 Pa.C.S.)

 

 

x Business Corporation (§ l915)

 

 

o Nonprofit Corporation (§ 5915)

 

 

 

Document will be returned to the name and address you enter to the left.

Corporation Service Company

 

573388-260

/s/ [illegible]

 

 

Commonwealth of Pennsylvania
ARTICLES OF AMENDMENT-BUSINESS 11 Page(s)

 

[BARCODE]
T1032164054

 

Fee: $70

 

In compliance with the requirements of the applicable provisions (relating to articles of amendment), the undersigned, desiring to amend its articles, hereby states that:

 

1.      The name of the corporation is:

 

  Pyramid Club Management, Inc.

 

 

 

 

2.      The (a) address of this corporation’s current registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is (the Department is hereby authorized to correct the following information to conform to the records of the Department):

 

(a) Number and Street

City

State

Zip

County

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(b) Name of Commercial Registered Office Provider

 

 

County

 

 

c/o Corporation Service Company

 

 

Dauphin

 

3.  The statute by or under which it was incorporated: Pennsylvania Business Corporation Law

 

4.  The date of its incorporation: February 19, 1991

 

5.  Check and if appropriate complete, one of the following:

 

x The amendment shall be effective upon filing these Articles of Amendment in the Department of State.

 

o The amendment shall be effective on:

 

at

 

 

 

 

Date

 

Hour

 

 

2010 NOV 15 PM 12:33

 

PA. DEPT. OF STATE

 


 

DSCB:15-1915/5915-2

 

6.  Check one of the following:

 

x The amendment was adopted by the shareholders or members pursuant to 15 Pa.C.S. § 1914(a) and (b), or § 5914(a).

 

o The amendment was adopted by the board of directors pursuant to 15 Pa. C.S.§ 19l4(c) or 5914(b).

 

7.  Check, and if appropriate, complete one of the following:

 

o The amendment adopted by the corporation, set forth in full, is as follows

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

x The amendment adopted by the corporation is set forth in full in Exhibit A attached hereto and made a part hereof.

 

8.       Check if the amendment restates the Articles:

 

x The restated Articles of Incorporation supersede the original articles and all amendments thereto.

 

 

 

IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles of Amendment to be signed by a duly authorized officer thereof this10th day of November, 2010.

 

 

 

 

 

PYRAMID CLUB MANAGEMENT, INC.

 

 

Name of Corporation

 

 

 

 

 

/s/ Ingrid Keiser

 

 

Signature

 

 

 

 

 

Secretary

 

 

Title

 


 

EXHIBIT A

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

PYRAMID CLUB MANAGEMENT, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed under the name Pyramid Club Management, Inc. with the Secretary of the Commonwealth of Pennsylvania on February 19,1991, pursuant to the Business Corporation Law of the Commonwealth of Pennsylvania, as heretofore amended, hereby execute these Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST. The name of the corporation is Pyramid Club Management, Inc. (the “Corporation”).

 

SECOND. The address of the Corporation’s registered office in the Commonwealth of Pennsylvania is 2704 Commerce Drive, Harrisburg, 17110. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Philadelphia, Commonwealth of Pennsylvania, including the sports or business club commonly known as Pyramid Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

1


 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the Commonwealth of Pennsylvania.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Pennsylvania, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Law of the Commonwealth of Pennsylvania, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely

 

2


 

affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Pennsylvania at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

3


 

IN WITNESS WHEREOF the undersigned has signed these Amended and Restated Articles of Incorporation (this 10th day of November, 2010.

 

 

PYRAMID CLUB MANAGEMENT, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name:

Ingrid Keiser

 

Title:

Secretary

 


 EX-3.126(B) 253 a2202241zex-3_126b.htm EX-3.126(B)

Exhibit 3.126(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

PYRAMID CLUB MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.     Annual Meetings.  If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Pennsylvania, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.     Special Meetings.  Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.     Notice of Meetings.  Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.     Adjournments.  Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.     Quorum.  Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.     Organization.  Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.     Voting; Proxies.  Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

2


 

Section 1.8.     Fixing Date for Determination of Stockholders of Record.  In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.     List of Stockholders Entitled to Vote.  The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

3


 

required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.   Action By Written Consent of Stockholders.  Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Pennsylvania, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election.  The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

4


 

Section 1.12.   Conduct of Meetings.  The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.     Number; Qualifications.  The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.     Election; Resignation; Vacancies.  At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.     Regular Meetings.  Regular meetings of the Board of Directors may be held at such places within or without the State of Pennsylvania and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.     Special Meetings.  Special meetings of the Board of Directors may be held at any time or place within or without the State of Pennsylvania whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.     Telephonic Meetings Permitted.  Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.     Quorum; Vote Required for Action.  At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.     Organization.  Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.     Action by Unanimous Consent of Directors.  Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7


 

ARTICLE III

 

Committees

 

Section 3.1.     Committees.  The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.     Committee Rules.  Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8

 

ARTICLE IV

 

Officers

 

Section 4.1.     Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.  The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.     Powers and Duties of Executive Officers.  The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.     Appointing Attorneys and Agents; Voting Securities of Other Entities.  Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1.     Certificates.  Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.     Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates.  The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

11


 

ARTICLE VI

 

Indemnification

 

Section 6.1.     Right to Indemnification.  The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.     Prepayment of Expenses.  The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.     Claims.  If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

12


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.     Nonexclusivity of Rights.  The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.     Other Sources.  The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.     Amendment or Repeal.  Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.     Other Indemnification and Prepayment of Expenses.  This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.     Fiscal Year.  The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.     Seal.  The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.     Manner of Notice.  Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.     Waiver of Notice of Meetings of Stockholders, Directors and Committees.  Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.     Form of Records.  Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.     Amendment of By-Laws.  These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

14


 EX-3.127(A) 254 a2202241zex-3_127a.htm EX-3.127(A)

Exhibit 3.127(a)

 

 

 

 

 

 

RECEIVED
SECRETARY OF STATE

 

2010 NOV 12 PM 3:51

 

CLIENT SERVICE CENTER

 

 

 

 

 

 

 

Prescribed by J. Kenneth Blackwell

 

Expedite this Form: (select One)

[State Seal]

 

Ohio Secretary of State

 

Mail Form to one of the Following:

 

 

Central Ohio: (614) 466-3910

 

o yes

PO Box 1390

 

 

Toll Free: 1-877-SOS-FILE (1-877-767-3453)

 

 

Columbus, OH 43216

 

 

 

 

*** Requires an additional fee of $100 ***

www.state.oh.us/sos
e-mail: busserv@sos.state.oh.us

 

o No

PO Box 1028
Columbus, OH 43216

 

Certificate of Amendment by
Shareholders or Members
(Domestic)
Filing Fee $50.00

 

(CHECK ONLY ONE (1) BOX)

 

(1)

Domestic for Profit

 

PLEASE READ INSTRUCTIONS

 

(2)

Domestic Non-Profit

 

 

 

 

x

Amended
(122-AMAP)

 

o

Amendment
(125-AMDS)

 

 

o

Amended
(126-AMAN)

 

o

Amendment
(128-AMD)

 

Complete the general information in this section for the box checked above.

 

Name of Corporation

Quail Hollow Management, Inc.

 

 

Charter Number

619437

 

 

Name of Officer

Ingrid Keiser

 

 

Title

Secretary

 

x

Please check if additional provisions attached.

 

The above named Ohio corporation, does hereby certify that:

 

o A meeting of the

o shareholders

o         directors (non-profit amended articles only)

 

o members was duly called and held on

 

 

 

 

(Date)

 

 

at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative vote was cast which entitled them to exercise                     % as the voting power of the corporation.

 

x

In a writing signed by all of the     x     shareholders     o     directors (non-profit amended articles only)

o

members who would be entitled to the notice of a meeting or such other proportion not less than a majority as the articles of regulations or bylaws permit.

 

Clause applies if amended box is checked.

 

Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede and take the place of the existing articles of incorporation and all amendments thereto.

 

1


 

All of the following information must be completed if an amended box is checked. If an amended box is checked, complete the areas that apply.

 

FIRST:                               The name of the corporation is: Quail Hollow Management, Inc.

 

SECOND:                The place in the State of Ohio where its principal office is located is in the City of:

 

Painesville

 

Lake

(city, village of township)

 

(country)

 

THIRD:         The purposes of the corporation are as follows;

 

See Exhibit A attached

 

FOURTH: The number of shares which the corporation is authorized to have outstanding is:

1,000 Common

(Does not apply to box (2))

$1.00 par value per share

 

REQUIRED

 

 

 

 

Must be authenticated

 

/s/ Ingrid Keiser

 

November 10, 2010

(signed) by an authorized

 

Authorized Representative

 

Date

representative

 

 

 

 

(See Instructions)

 

Ingrid Keiser

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Authorized Representative

 

Date

 

 

 

 

 

 

 

 

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2


 

EXHIBIT A

TO

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

QUAIL HOLLOW MANAGEMENT, INC.

 

THIRD. Quail Hollow Management, Inc. (the “Corporation”) has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Quail Hollow Country Club, in the City of Painesville, State of Ohio (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the General Corporation Law of the State of Ohio.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

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(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

SEVENTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Ohio, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

EIGHTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH. The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

TENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Ohio, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Ohio at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH. Reserved.

 

THIRTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of

 

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a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors of the Corporation and the sole shareholder of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 1701.71 of Ohio General Corporation Law. These Amended and Restated Articles of Incorporation supersede the Corporation’s existing Articles of Incorporation and all amendments to them.

 

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IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

 

QUAIL HOLLOW MANAGEMENT, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 


 EX-3.127(B) 255 a2202241zex-3_127b.htm EX-3.127(B)

Exhibit 3.127(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

QUAIL HOLLOW MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Ohio, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Ohio, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Ohio and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Ohio whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost; Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

14


 EX-3.128(A) 256 a2202241zex-3_128a.htm EX-3.128(A)

Exhibit 3.128(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

QUEENS HARBOUR CORPORATION

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Queens Harbour Corporation (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Queens Harbour Corporation.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on October 22, 1993.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The Articles of Incorporation of the Corporation are amended and restated to read in their entirety as follows:

 

ARTICLE I

 

The name of the Corporation is Queens Harbour Corporation.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

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(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Queens Harbour Country Club, in the City of Jacksonville, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

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ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition

 

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seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — Queens Harbour Corporation

 


 EX-3.128(B) 257 a2202241zex-3_128b.htm EX-3.128(B)

Exhibit 3.128(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

QUEENS HARBOUR CORPORATION

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Florida and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the

 

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corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

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Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and

 

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delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.129(A) 258 a2202241zex-3_129a.htm EX-3.129(A)

Exhibit 3.129(a)

 

Return to:

 

CSC-Lawyers Incorporating Service

601 Abbott Road

East Lansing, MI  48823

 

RESTATED ARTICLES OF INCORPORATION

 

OF

 

RENAISSANCE CLUB, INC.

 

Renaissance Club, Inc., for the purposes of amending and restating its Articles of Incorporation, pursuant to Section 641 of the Business Corporation Act of the State of Michigan hereby executes these Restated Articles of Incorporation:

 

1.             The present name of the corporation is Renaissance Club, Inc.

 

2.             The identification number assigned by the Bureau is 005-701.

 

3.             The Corporation does not have any former names.

 

4.             The date of filing the original Articles of Incorporation was November 23, 1976.

 

The following Restated Articles of Incorporation supersede the Articles of Incorporation as amended and shall be the Articles of Incorporation for the Corporation:

 

FIRST.  The name of the corporation is Renaissance Club, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the State of Michigan is 601 Abbott Road in the City of East Lansing, County of Ingham, 48823.  The name of its registered agent at such address is CSC — Lawyers Incorporating Service (Company).

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Detroit, State of Michigan, including the sports or business club commonly known as Renaissance Club, and in the City of Southfield, State of Michigan, including the sports or business club known as the Skyline Club (the “Business”);

 

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(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Act of the State of Michigan.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, and are to be of one class.

 

FIFTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

SEVENTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Michigan, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

EIGHTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH.  Reserved.

 

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TENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for money damages for any action taken or any failure to take any action as a director, except for liability for any of the following:  (i) the amount of a financial benefit received by a director to which he or she is not entitled; (ii) intentional infliction of harm on the Corporation or the shareholders; (iii) a violation of Section 551 of the Business Corporation Act of Michigan; or (iv) an intentional criminal act.  If the Business Corporation Act of Michigan is amended after the date of these Restated Articles of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Business Corporation Act of Michigan, as so amended..  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Articles of Incorporation, and other provisions authorized by the laws of the State of Michigan at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH.  Reserved.

 

THIRTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FOURTEENTH.  Any action required or permitted by the Michigan Business Corporation Act to be taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if consents in writing, setting forth the action so taken, are signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote on the action were present and voted.  A written consent shall bear the date of signature of the shareholder who signs the consent.  Written consents are not effective to take corporate action unless within 60 days after the record date for determining shareholders entitled to express consent to or to dissent from a proposal without a meeting, written consents dated not more than 10 days before the record date and signed by a sufficient

 

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number of shareholders to take the action are delivered to the Corporation.  Delivery shall be to the Corporation’s registered office, its principal place of business, or an officer or agent of the Corporation having custody of the minutes of the proceedings of its shareholders.  Delivery made to a Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

 

Prompt notice of the taking of the corporate action without a meeting by less than unanimous consent shall be given to shareholders who would have been entitled to notice of the shareholder meeting if the action had been taken at a meeting and who have not consented to the action in writing.  An electronic transmission consenting to an action must comply with Section 407(3) of the Michigan Business Corporation Act.

 

FIFTEENTH:  These Restated Articles of Incorporation were duly adopted on the 9th day of November, 2010, in accordance with the provisions of Section 642 of the Michigan Business Corporation Act and by the written consent of all the shareholders entitled to vote in accordance with Section 407(2) of the Michigan Business Corporation Act.

 

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Signed this the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

 

 

 

Name of person or organization remitting fees:

Preparer’s name and business telephone number:

 

 

Corporation Service Company

Justin L. Moon

 

(206) 359-8000

 

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 EX-3.129(B) 259 a2202241zex-3_129b.htm EX-3.129(B)

Exhibit 3.129(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

RENAISSANCE CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.             Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Michigan, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.             Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons, except as required by applicable law. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.             Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.             Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting if a notice of the adjourned meeting is not given. If after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.             Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Unless otherwise permitted by applicable law, the shares of a corporation shall not be voted on any matter or considered to be outstanding shares for any purpose related to voting if they are owned, directly or indirectly, by a second corporation, and the first corporation owns, directly or indirectly, a majority of the shares entitled to vote for directors of the second corporation.

 

Section 1.6.             Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.             Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.             Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.             List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders. A stockholder also has the right to inspect the list of stockholders at any time for any proper purpose, in accordance with applicable law.

 

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Section 1.10.           Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Michigan, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. A written consent shall bear the date of signature of the stockholder who signs the consent. Written consents are not effective to take corporate action unless within 60 days after the record date for determining stockholders entitled to express consent to or to dissent from a proposal without a meeting, written consents dated not more than 10 days before the record date and signed by a sufficient number of stockholders to take the action are delivered to the corporation. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.           Inspectors of Election. The Board of Directors may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Board of Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting may, and on request of a stockholder entitled to vote at the meeting shall, appoint one or more inspectors to act at the meeting. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting, whether a quorum is present, and the validity of proxies and ballots, (iii) receive and count all votes and ballots, (iv) determine challenges and questions arising in connection with the right to vote (v) determine the result, and (vi) do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting or a stockholder entitled to vote at the meeting, the inspector shall make and execute a written report to the person presiding at the meeting of any of the facts found by the inspector and matters determined by him or her. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.           Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.             Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.             Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.             Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Michigan and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.             Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Michigan whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.             Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.             Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.             Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.             Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.             Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.             Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.             Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President, a Treasurer and a Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person, but an officer shall not execute, acknowledge or verify an instrument in more than one capacity if the instrument is required by law or the articles of incorporation or by-laws to be executed, acknowledged or verified by two or more officers. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.             Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.             Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary

 

9


 

or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1.             Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and which may also be signed by another officer of the corporation, certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.             Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Board of Directors may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.             Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower; and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.             Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.             Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

12


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.             Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.             Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.             Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.             Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

13


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.             Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.             Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.             Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally, mailed to the directors or stockholders at their addresses appearing on the books of the corporation or delivered by electronic transmission. Notice to directors may be given by telecopier or telephone.

 

Section 7.4.             Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.             Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.             Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

14


 EX-3.130(A) 260 a2202241zex-3_130a.htm EX-3.130(A)

Exhibit 3.130(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

RICHARDSON COUNTRY CLUB CORP.

 

Richardson Country Club Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Richardson Country Club Corp.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.             The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF RICHARDSON COUNTRY CLUB CORP.”

 

2.             The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Richardson Country Club Corp.  The Corporation is a for-profit corporation.

 

3.             The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Canyon Creek Country Club, in the City of Richardson, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.             The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.             The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

6.             The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.             The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.             The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.             The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

3


 

10.           The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.           The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Richardson Country Club Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

RICHARDSON COUNTRY CLUB CORP.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

RICHARDSON COUNTRY CLUB CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Richardson Country Club Corp.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Canyon Creek Country Club, in the City of Richardson, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one million (1,000,000) shares of Common Stock, with no par value.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

2


 

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.130(B) 261 a2202241zex-3_130b.htm EX-3.130(B)

Exhibit 3.130(b)

 

AMENDED AND RESTATED BYLAWS

OF

RICHARDSON COUNTRY CLUB CORP.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation: Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.131(A) 262 a2202241zex-3_131a.htm EX-3.131(A)

Exhibit 3.131(a)

 

ARTICLES OF RESTATEMENT OF

 

RIVER CREEK COUNTRY CLUB, INC.

 

The undersigned corporation, pursuant to Title 13.1, Chapter 9, Article 11 of the Code of Virginia, hereby executes the following articles of restatement and sets forth:

 

1.                                      The name of the corporation immediately prior to restatement is River Creek Country Club, Inc.

 

2.                                      The restatement contains an amendment to the articles of incorporation.

 

3.                                      The text of the amended and restated articles of incorporation is attached hereto.

 

4.                                      The restatement was adopted by the corporation on November 9, 2010.

 

5.                                      The restatement was adopted by unanimous consent of the shareholders.

 

 

Executed in the name of the corporation by:

 

 

/s/ Ingrid Keiser

 

November 10, 2010.

 

 

 

Ingrid Keiser

 

Secretary

 

 

 

 

 

 

045558 7

 

(telephone number (optional))

 


 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

RIVER CREEK COUNTRY CLUB, INC.

 

Pursuant to Section 13.1-711 of the Virginia Stock Corporation Act, the Articles of Incorporation of River Creek Country Club, Inc. are hereby amended and restated to read as follows:

 

FIRST.  The name of the corporation is River Creek Country Club, Inc. (the “Corporation”).

 

SECOND.

A.

The name of the corporation’s registered agent is Corporation Service Company.

 

 

 

 

B.

The registered agent is (mark appropriate box):

 

 

 

 

 

(1)

 

an individual who is a resident of Virginia and

 

 

 

o

an initial director of the corporation.

 

 

 

o

a member of the Virginia State Bar.

 

 

 

 

OR

 

 

(2)

x                       a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the River Creek Country Club, in the City of Leesburg, State of Virginia (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

2


 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Virginia Stock Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Virginia,  the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.  .

 

TENTH.  [Reserved].

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under Virginia Stock Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or

 

3


 

protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Virginia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Corporate action required or permitted by Chapter 9 of the Virginia Stock Corporation Act may be taken without a meeting and without prior notice, if the corporate action is taken by a written consent signed by shareholders who would be entitled to vote at a meeting of holders of outstanding shares having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take the corporate action at a meeting at which all shareholders entitled to vote thereon were present and voted.

 

SIXTEENTH.  These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 13.1-711 of the Virginia Stock Corporation Act.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

4


 EX-3.131(B) 263 a2202241zex-3_131b.htm EX-3.131(B)

Exhibit 3.131(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

RIVER CREEK COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the Commonwealth of Virginia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken unless the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, in which event the Board of Directors shall fix a new record date. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the Commonwealth of Virginia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. Except to the extent required by the Corporation’s Articles of Incorporation, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the Commonwealth of Virginia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the Commonwealth of Virginia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.132(A) 264 a2202241zex-3_132a.htm EX-3.132(A)

Exhibit 3.132(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

RIVERS CLUB, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed under the name Pennsylvania City Club, Inc. with the Secretary of the Commonwealth of Pennsylvania on September 14, 1981, as heretofore amended, pursuant the Business Corporation Law of the Commonwealth of Pennsylvania, hereby execute these Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST. The name of the corporation is Rivers Club, Inc. (the “Corporation”).

 

SECOND. The address of the Corporation’s registered office in the Commonwealth of Pennsylvania is 2704 Commerce Drive, Harrisburg, 17110. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Pittsburgh, Commonwealth of Pennsylvania, including the sports or business club commonly known as Rivers Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the Commonwealth of Pennsylvania.

 

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FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)     The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

(b)     The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Pennsylvania, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Law of the Commonwealth of Pennsylvania, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

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TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Pennsylvania at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

RIVERS CLUB, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Title: Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation. Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.                            On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.                            The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.                            The amendments were adopted by the shareholders. On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock. The number cast for the amendment was sufficient for approval by that voting group.

 

Dated:   November 10, 2010.

RIVERS CLUB, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

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 EX-3.132(B) 265 a2202241zex-3_132b.htm EX-3.132(B)

Exhibit 3.132(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

RIVERS CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Pennsylvania, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Pennsylvania, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

4


 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Pennsylvania and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Pennsylvania whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

12


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.133(A) 266 a2202241zex-3_133a.htm EX-3.133(A)

Exhibit 3.133(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
SHADY VALLEY MANAGEMENT CORP.

 

Shady Valley Management Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is Shady Valley Management Corp.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.                         The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF SHADY VALLEY MANAGEMENT CORP.”

 

2.                         The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Shady Valley Management Corp. The Corporation is a for-profit corporation.

 

3.                         The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Shady Valley Country Club, in the City of Arlington, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                         The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                         The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

2


 

 

Martin J. Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

6.                         The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                         The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                         The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article

 

9.                         The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

3


 

10.                   The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                   The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of Shady Valley Management Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

 

SHADY VALLEY MANAGEMENT CORP.

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
SHADY VALLEY MANAGEMENT CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Shady Valley Management Corp. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Shady Valley Country Club, in the City of Arlington, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

2


 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.133(B) 267 a2202241zex-3_133b.htm EX-3.133(B)

Exhibit 3.133(b)

 

AMENDED AND RESTATED BYLAWS

OF

SHADY VALLEY MANAGEMENT CORP.

 

ARTICLE I
Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.134(A) 268 a2202241zex-3_134a.htm EX-3.134(A)

Exhibit 3.134(a)

 

 

 

 

 

RECEIVED
SECRETARY OF STATE


2010 NOV 12  PM 3:51

CLIENT SERVICE CENTER

 

 

 

 

 

 

 

Prescribed by J. Kenneth Blackwell

 

Expedite this Form: (Select One)

[State Seal]

 

Ohio Secretary of State

 

Mail Form to one of the Following:

 

 

Central Ohio: (614) 466-3910

 

o Yes

PO Box 1390

 

 

Toll Free: 1-877-SOS-FILE (1-877-767-3453)

 

 

Columbus, OH 43216

 

 

 

 

*** Requires an additional fee of $100 ***

www.state.oh.us/sos
e-mail: busserv@sos.state.oh.us

 

o No

PO Box1028
Columbus, OH 43216

 

Certificate of Amendment by
Shareholders or Members
(Domestic)
Filing Fee $50.00

 

 

(CHECK ONLY ONE (1) BOX)

 

(1)

Domestic for Profit

 

PLEASE READ INSTRUCTIONS

 

(2)

Domestic Non-Profit

 

 

 

 

x

Amended
(122-AMAP)

 

o

Amendment
(125-AMDS)

 

 

o

Amended
(126-AMAN)

 

o

Amendment
(128-AMD)

 

Complete the general information in this section for the box checked above.

 

Name of Corporation

Shoreby Club Management, Inc.

 

 

Charter Number

737760

 

 

Name of Officer

Ingrid Keiser

 

 

Title

Secretary

 

x

Please check if additional provisions attached.

 

The above named Ohio corporation, does hereby certify that:

 

o A meeting of the

o shareholders

o         directors (non-profit amended articles only)

 

 

 

 

 

o members was duly called and held on

 

 

 

 

(Date)

 

 

at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative vote was cast which entitled them to exercise                              % as the voting power of the corporation.

 

x

In a writing signed by all of the     x     shareholders     o     directors (non-profit amended articles only)

o

members who would be entitled to the notice of a meeting or such other proportion not less than a majority as the articles of regulations or bylaws permit.

 

Clause applies if amended box is checked.

 

Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede and take the place of the existing articles of incorporation and all amendments thereto.

 

1


 

All of the following information must be completed if an amended box is checked.
If an amendment box is checked, complete the areas that apply.

 

FIRST:                            The name of the corporation is: Shoreby Club Management, Inc.

 

SECOND:            The place in the State of Ohio where its principal office is located is in the City of:

 

Bratenahl

 

Cuyahoga

(city, village or township)

 

(county)

 

THIRD:        The purposes of the corporation are as follows:

 

See Exhibit A attached.

 

FOURTH: The number of shares which the corporation is authorized to have outstanding is:

1,000 Common

(Does not apply to box (2))

$1.00 par value per share

 

REQUIRED

 

 

 

 

Must be authenticated

 

/s/ Ingrid Keiser

 

November 10, 2010

(signed) by an authorized

 

Authorized Representative

 

Date

representative

 

 

 

 

(See Instructions)

 

Ingrid Keiser

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Authorized Representative

 

Date

 

 

 

 

 

 

 

 

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2

 

EXHIBIT A

 

TO

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

SHOREBY CLUB MANAGEMENT, INC.

 

THIRD, Shoreby Club Management, Inc. (the “Corporation”) has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Bratenahl, State of Ohio, including the sports or business club commonly known as Shoreby Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the General Corporation Law of the State of Ohio.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH, Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

1


 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

SEVENTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Ohio, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise,

 

EIGHTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH. The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

TENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Ohio, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Ohio at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH. Reserved.

 

THIRTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency

 

2


 

proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its properly; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors of the Corporation and the sole shareholder of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 1701.71 of Ohio General Corporation Law. These Amended and Restated Articles of Incorporation supersede the existing Articles of Incorporation of the Corporation and all amendments thereto.

 

3


 

IN WITNESS WHEREOF the undersigned has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

 

SHOREBY CLUB MANAGEMENT, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 


 EX-3.134(B) 269 a2202241zex-3_134b.htm EX-3.134(B)

Exhibit 3.134(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

SHOREBY CLUB MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Ohio, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

2


 

Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

3


 

required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Ohio, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

4


 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Ohio and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Ohio whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7


 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8

 

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

11


 

ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

12


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

13


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

14

 


 EX-3.135(A) 270 a2202241zex-3_135a.htm EX-3.135(A)

Exhibit 3.135(a)

 

[Secretary of State of Ohio Seal]

Prescribed by J. Kenneth Blackwell

Expedite this Form: (Select One)

Ohio Secretary of State

Mail Form to one of the Following:

Central Ohio: (614) 466-3910

o Yes

PO Box 1390

Toll Free: 1-877-SOS-FILE (1-877-767-3453)

Columbus, OH 43216

 

*** Requires an additional fee of $100 ***

 

o No

PO Box 1028

 

Columbus, OH 43216

 

 

www.state.oh.us/sos

 

 

e-mail: busserv@sos.state.oh.us

 

 

Certificate of Amendment by

 

 

 

Shareholders or Members

 

 

 

(Domestic)

 

 

 

Filing Fee $50.00

 

 

 

 

 

 

(CHECK ONLY ONE (1) BOX)

 

 

(1) Domestic for Profit

PLEASE READ INSTRUCTIONS

(2) Domestic Non-Profit

 

      x Amended

o Amendment

      o Amended

o Amendment

          (122-AMAP)

     (125-AMDS)

          (126-AMAN)

     (128-AMD)

 

Complete the general information in this section for the box checked above.

 

Name of Corporation

Silver Lake Management Corp.

 

Charter Number

750102

 

Name of Officer

Ingrid Keiser

 

Title

Secretary

 

x  Please check if additional provisions attached.

 

The above named Ohio corporation, does hereby certify that:

 

o A meeting of the

o shareholders

o directors (non-profit amended articles only)

 

o members was duly called and held on

 

 

 

(Date)

 

 

at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative vote was cast which entitled them to exercise                    % as the voting power of the corporation.

 

x

In a writing signed by all of the

x shareholders

o directors (non-profit amended articles only)

 

o

members who would be entitled to the notice of a meeting or such other proportion not less than a majority as the articles of regulations or bylaws permit.

 

Clause applies if amended box is checked.

 

Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede and take the place of the existing articles of incorporation and all amendments thereto.

 

1


 

All of the following information must be completed if an amended box is checked. If an amendment box is checked, complete the areas that apply.

 

FIRST:

The name of the corporation is: Silver Lake Management Corp

 

 

 

SECOND:

The place in the State of Ohio where its principal office is located is in the City of:

 

 

 

Silver Lake

Summit

 

 

(city, village or township)

(county)

 

 

 

 

THIRD:

The purposes of the corporation are as follows:

 

 

 

 

 

See Exhibit A attached.

 

 

 

 

 

 

 

 

 

 

FOURTH:

The number of shares which the corporation is authorized to have outstanding is:

1,000 Common

 

(Does not apply to box (2))

$1.00 par value per share

 

REQUIRED

 

 

 

Must be authenticated

/s/ Ingrid Keiser

 

November 10, 2010

(signed) by an authorized

Authorized Representative

 

Date

representative

 

 

 

(See Instructions)

Ingrid Keiser

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Authorized Representative

 

Date

 

 

 

 

 

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2


 

EXHIBIT A

 

TO

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

SILVER LAKE MANAGEMENT CORP.

 

THIRD. Silver Lake Management Corp. (the “Corporation”) has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Silver Lake Country Club, in the City of Silver Lake, State of Ohio (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the General Corporation Law of the State of Ohio.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH.

 

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(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

SEVENTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Ohio, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

EIGHTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH. The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

TENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Ohio, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Ohio at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Retated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH. Reserved.

 

2


 

THIRTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors of the Corporation and the sole shareholder of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 1701.71 of Ohio General Corporation Law. These Amended and Restated Articles of Incorporation supersede the Corporation’s existing Articles of Incorporation and all amendments to them.

 

3


 

IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

SILVER LAKE MANAGEMENT CORP.

 

 

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

4


 EX-3.135(B) 271 a2202241zex-3_135b.htm EX-3.135(B)

Exhibit 3.135(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

SILVER LAKE MANAGEMENT CORP.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Ohio, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

3


 

required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Ohio, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Ohio and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Ohio whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

8

 

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

12


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal.  The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.136(A) 272 a2202241zex-3_136a.htm EX-3.136(A)

Exhibit 3.136(a)

 

ARTICLES OF AMENDMENT AND RESTATEMENT

 

OF THE

 

ARTICLES OF INCORPORATION

 

OF

 

SKYLINE CLUB, INC.

 

The undersigned officer of the above corporation (the “Corporation”) existing pursuant to the Indiana Business Corporation Law, as amended (the “Act”), desiring to give notice of corporate action effectuating the amendment and restatement of its Articles of Incorporation, certifies the following facts:

 

ARTICLE I

 

AMENDMENT AND RESTATEMENT

 

FIRST. The date of incorporation of the Corporation is October 31, 1980.

 

SECOND. The name of the Corporation is Skyline Club, Inc. The name of the Corporation at the time of incorporation was Indianapolis City Club, Inc.

 

THIRD. The name of the corporation following the Amendment and Restatement of the Articles of Incorporation of the Corporation is Skyline Club, Inc.

 

FOURTH. The exact text of the Amended and Restated Articles of Incorporation of the Corporation is attached hereto and made a part hereof as Exhibit A (the “Amended Articles”).

 

FIFTH. The Amended Articles shall be effective upon filing with the Secretary of State of the State of Indiana.

 

ARTICLE II

 

MANNER OF ADOPTION AND VOTE

 

The Amended Articles contain an amendment requiring shareholder approval. The Amended Articles were adopted by written consent by the Board of Directors on November 9, 2010, which consent was signed by each of the directors, and by written consent of the shareholders of the Corporation entitled to vote thereon on November 9, 2010, which consent was signed by each of the shareholders entitled to vote thereon.

 

The designation, number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the Amended Articles, the number of votes of each voting group represented, and the number of votes cast for and against the Amended Articles by each voting group entitled to vote separately on the Amended Articles is set forth below:

 


 

Designation of each Voting Group

 

TOTAL

 

Common

 

Number of Outstanding Shares

 

1000

 

1000

 

Number of Votes Entitled to Be Cast

 

1000

 

1000

 

Number of Votes Represented at Meeting

 

1000

 

1000

 

Number of Votes in Favor

 

1000

 

1000

 

Number of Votes Against

 

0

 

0

 

 

The number of votes cast for the Amended Articles by each voting group entitled to vote thereon was sufficient for approval by that voting group.

 

ARTICLE III

 

COMPLIANCE WITH LEGAL REQUIREMENTS

 

The undersigned officer of the Corporation hereby presents these Articles of Amendment and Restatement of the Articles of Incorporation of the Corporation to the Secretary of State of the State of Indiana for filing, and states that the manner of their adoption and the vote by which they were adopted constitute full legal compliance with the provisions of the Act, the previously existing articles of the Corporation, and the By-Laws of the Corporation.

 

[Signature Page Follows]

 

2


 

IN WITNESS WHEREOF, the undersigned officer executes these Articles of Amendment and Restatement of the Articles of Incorporation of the Corporation, and verifies subject to the penalties of perjury that the facts contained herein are true, this 10th day of November, 2010.

 

 

SKYLINE CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

This document prepared by:

 

Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle WA 98101-3099

 


 

EXHIBIT A

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

SKYLINE CLUB, INC.

 

The above corporation (hereinafter referred to as the “Corporation”) existing pursuant to the Indiana Business Corporation Law, as amended (the “Act”), desiring to give notice of corporate action effectuating amendment and restatement of its Articles of Incorporation, sets forth the following facts:

 

First. The name of the corporation is Skyline Club, Inc. (the “Corporation”).

 

Second. The address of the Corporation’s registered office in the State of Indiana is 251 East Ohio Street, Suite 500, Indianapolis, Indiana 46204. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Indianapolis, State of Indiana, including the sports or business club commonly known as Skyline Club - Indianapolis (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Act.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 


 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Indiana, the Corporation’s Board of Directors is expressly authorized to make, alter and repeal the By-Laws of the Corporation, provided, however, that the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Act as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Indiana at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

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FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Corporation’s Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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 EX-3.136(B) 273 a2202241zex-3_136b.htm EX-3.136(B)

Exhibit 3.136(b)

 

AMENDED AND RESTATED BY-LAWS

OF

SKYLINE CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Indiana, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a

 


 

majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 

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days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Indiana, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

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Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Indiana and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Indiana whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her

 

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absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

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Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.137(A) 274 a2202241zex-3_137a.htm EX-3.137(A)

Exhibit 3.137(a)

 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

 

RECEIVED
MAR 26 1996
SECRETARY OF STATE

 

 

 

MAR 26 1996
6737-96
DEAN HELLER SECRETARY OF STATE

 

 

to. 

/s/ Dean Heller

 

 

 

ARTICLES OF INCORPORATION

 

OF

 

SOCIETY MANAGEMENT, INC.

 

I, the undersigned, for the purpose of forming a corporation under and pursuant to the laws of the State of Nevada, do hereby certify that:

 

ARTICLE I

 

The name of this corporation is Society Management, Inc.

 

ARTICLE II

 

The address of its initial registered office is One East First Street, Reno, Washoe County, Nevada 89501, and the name of its initial registered agent at such address is The Corporation Trust Company of Nevada.

 

Offices for the transaction of any business of this corporation, and where meetings of the Board of Directors and of the stockholders may be held, may be established and maintained in any other part of the State of Nevada, or in any other state, territory, or possession of the United States of America, or in any foreign country.

 

ARTICLE III

 

The nature of the business and objects and purposes proposed to be transacted, promoted, or carried on by the corporation are to engage in any lawful activity.

 

ARTICLE IV

 

The total authorized capital stock of the corporation shall consist of one thousand (1,000) shares, with a par value of One Dollar ($1.00) per share, all of which shall be entitled to voting power.

 

ARTICLE V

 

The members of the governing board of the corporation shall be styled Directors, and the number thereof at the inception of this corporation shall be three (3) or more. The number of Directors may from time to time be increased or decreased in such manner as shall be provided by the bylaws of the corporation and the statutes of the State of Nevada. Directors need not be shareholders, but shall be full age and at least one shall be a citizen of the United States. The names and post office

 

1


 

addresses of the first Board of Directors, which shall consist of three (3) persons, and who shall hold office until their successors are duly elected and qualified are as follows:

 

Murry E. Page

 

15770 Dallas Parkway
5th Floor
Dallas, Texas 75248

 

 

 

Nikki A. Hobert

 

15770 Dallas Parkway
5th Floor
Dallas, Texas 75248

 

 

 

Deborah G. Means

 

15770 Dallas Parkway
5th Floor
Dallas, Texas 75248

 

ARTICLE VI

 

The capital stock of the corporation, after the amount of the subscription price has been paid in money, property, or services, as the Directors shall determine, shall not be subject to assessment to pay the debts of the corporation, nor for any other purpose, and no stock issued as fully paid up shall ever be assessable or assessed, and the Articles of Incorporation shall not be amended in this particular.

 

ARTICLE VII

 

This corporation shall have perpetual existence.

 

ARTICLE VIII

 

The name and address of the incorporator signing these Articles of Incorporation is as follows:

 

Linda Blanton-Myers

 

15770 Dallas Parkway
5th Floor
Dallas, Texas 75248

 

IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of Incorporation this 21st day of March, 1996.

 

 

 

 

/s/ Linda Blanton-Myers

 

 

Linda Blanton-Myers

 

2


 

STATE OF TEXAS

 

}

 

 

}

COUNTY OF DALLAS

 

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Linda Blanton-Myers, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 21st day of March, 1996.

 

 

 

 

/s/ Linda M. McGuire

[Notary Public Seal]

 

Notary Public, State of Texas

 

3


 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

 

 

 

 

 

MAR 26 1996
6737-96
DEAN HELLER SECRETARY OF STATE

 

 

to. 

/s/ Dean Heller

 

 

 

CERTIFICATE OF ACCEPTANCE OF APPOINTMENT

 

BY RESIDENT AGENT

 

The Corporation Trust Company of Nevada hereby accepts the appointment as Resident Agent of Society Management, Inc.

 

The Corporation Trust Company of Nevada Resident Agent.

 

 

By:

/s/ Daniel R. Glatz

 

Date: March 25, 1996

 

Daniel R. Glatz

 

 

 

Assistant Secretary

 

 

 

 

FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA

 

 

 

 

 

DEC 31 1996
No. 6737-96

 

 

/s/ Dean Heller

 

 

DEAN HELLAR SECRETARY OF STATE

 

 

 

ARTICLES OF MERGER
of
SOCIETY MANAGEMENT, INC.
(a Florida corporation)
CAPITAL SOCIETY OF CLUBS, INC.
(a District of Columbia corporation)
CHICAGO SOCIETY OF CLUBS, INC.
(an Illinois corporation)
DETROIT SOCIETY OF CLUBS, INC.
(a Michigan corporation)
CINCINNATI SOCIETY OF CLUBS, INC.
(an Ohio corporation)
SOCIETY MANAGEMENT WEST, INC.
(a California corporation)
SOCIETY MANAGEMENT CENTRAL, INC.
(a Texas corporation)
METROPOLITAN SOCIETY, INC.
(a Texas corporation)
into
SOCIETY MANAGEMENT, INC.
(a Nevada corporation)

 

Pursuant to the provisions of Nevada Revised Statutes 78.458, the undersigned corporation submits the following Articles of Merger for the purpose of merging Society Management, Inc., Capital Society of Clubs, Inc., Chicago Society of Clubs, Inc., Detroit Society of Clubs, Inc., Cincinnati Society of Clubs, Inc., Society Management West, I. c., Society Management Central, Inc., and Metropolitan Society, Inc. into Society Management, Inc.:

 

1.        The names and places of incorporation of the constituent corporations and the surviving corporation are as follows:

 

Surviving Corporation:
Society Management, Inc.
Incorporated under the laws of the State of Nevada

 

Constituent Corporations:
Society Management, Inc.
Incorporated under the laws of the State of Florida

 

Capital Society of Clubs, Inc.
Incorporated under laws of the District of Columbia

 

Chicago Society of Clubs, Inc.
Incorporated under the laws of the State of Illinois

 

Detroit Society of Clubs, Inc.
Incorporated under the laws of the State of Michigan

 

Cincinnati Society of Clubs, Inc.
Incorporated under the laws of the State of Ohio

 

1


 

Society Management West, Inc.
Incorporated under the laws of the State of California

 

Society Management Central, Inc.
Incorporated under the laws of the State of Texas

 

Metropolitan Society, Inc.
Incorporated under the laws of the State of Texas

 

2.        A Plan and Agreement of Merger, a copy of which is attached as Exhibit “A” and incorporated herein by this reference, has been adopted by the Board of Directors of each corporation that is a party to the merger.

 

3.        The approval of the stockholder of Society Management, Inc., the Surviving Corporation, was not required, since pursuant to NRS 78.454:

 

(a) The articles of incorporation of the surviving corporation will not differ from its articles before the merger; and

 

(b) Each stockholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights immediately after the merger; and

 

(c) The number of voting shares outstanding immediately after the merger will not exceed the total number of voting shares of the surviving corporation outstanding immediately before the merger; and

 

(d) The number of participating shares outstanding immediately after the merger will not exceed the total number of participating shares outstanding immediately before the merger.

 

4.        The Articles of Incorporation of Society Management, Inc., the Surviving Corporation, were not amended and will not be amended, as a result of the merger.

 

DATED: August 30, 1996

 

 

 

 

 

 

The Surviving Corporation

 

 

 

SOCIETY MANAGEMENT, INC.

 

 

 

 

 

 

 

By

/s/ James M. Hinckley

 

 

James M. Hinckley

 

Its

President

 

2


 

 

And

/s/ Terry A. Taylor

 

 

Terry A. Taylor

 

Its

Secretary

 

STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, a notary public, on this day personally appeared James M. Hinckley, President of Society Management, Inc., a Nevada corporation, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements contained therein are true and correct and that he executed the Articles of Merger in the capacity stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 30 day of August, 1996.

 

 

 

 

/s/ Julie H. Green

[Notary Public Seal]

 

Notary Public, State of Texas

 

STATE OF TEXAS

§

 

§

COUNTY OF DALLAS

§

 

BEFORE ME, a notary public, on this day personally appeared Terry A. Taylor, Secretary of Society Management, Inc. a Nevada corporation, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements contained therein are true and correct and that he executed the Articles of Merger in the capacity stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this 30 day of August, 1996.

 

 

 

 

/s/ Julie H. Green

[Notary Public Seal]

 

Notary Public, State of Texas

 

3


 

PLAN AND AGREEMENT OF MERGER
OF
SOCIETY MANAGEMENT, INC.
CAPITAL SOCIETY OF CLUBS, INC.
CHICAGO SOCIETY OF CLUBS, INC.
DETROIT SOCIETY OF CLUBS, INC.
CINCINNATI SOCIETY OF CLUBS, INC.
SOCIETY MANAGEMENT WEST, INC.
SOCIETY MANAGEMENT CENTRAL, INC.
METROPOLITAN SOCIETY, INC.
into
SOCIETY MANAGEMENT, INC.

 

THIS AGREEMENT, dated as of the 27th day of August, 1996, by and between Society Management, Inc., a Florida corporation (hereinafter sometimes referred to as “SMI”), Capital Society of Clubs, Inc., a District of Columbia corporation (hereinafter sometimes referred to as “Capital”), Chicago Society of Clubs, Inc., an Illinois corporation (hereinafter referred to as “Chicago”), Detroit Society of Clubs, Inc., a Michigan corporation (hereinafter sometimes referred to as “Detroit”), Cincinnati Society of Clubs, Inc., an Ohio corporation (hereinafter sometimes referred to as “Cincinnati”), Society Management West, Inc., a California corporation (hereinafter sometimes referred to as “West”), Society Management Central, Inc., a Texas corporation (hereinafter sometimes referred to as “Central”), Metropolitan Society, Inc., a Texas corporation (hereinafter sometimes referred to as “Metropolitan”) and Society Management, Inc., a Nevada corporation (hereinafter sometimes referred to as “Society”). SMI, Capital, Chicago, Detroit, Cincinnati, West, Central and Metropolitan are hereinafter sometimes collectively referred to as the “Merged Corporations”. Society is hereinafter sometimes referred to as the “Surviving Corporation. SMI, Capital, Chicago, Detroit, Cincinnati, West, Central, Metropolitan and Society are hereinafter sometimes collectively referred to as the “Constituent Corporations.” The agreement of the Constituent Corporations is as follows:

 

W I T N E S S E T H

 

WHEREAS, SMI is a corporation duly organized and existing under the laws of the State of Florida, having been incorporated on January 13, 1992, with its registered office being located at 1200 South Pine Island Road, Plantation, Florida 33324, and the name of its registered agent being C T Corporation System; and

 

Exhibit “A”

 

1


 

WHEREAS, Chicago is a corporation duly organized and existing under the laws of the State of Illinois, having been incorporated on November 26, 1991, with its registered office being located at 208 South LaSalle Street, Chicago, Illinois 60604, and the name of its registered agent being C T Corporation System; and

 

WHEREAS, Detroit is a corporation duly organized and existing under the laws of the State of Michigan, having been incorporated on October 4, 1993, with its registered office being located at 30600 Telegraph Road, Bingham Farms, Michigan 48025, and the name of its registered agent being The Corporation Company; and

 

WHEREAS, Cincinnati is a corporation duly organized and existing under the laws of the State of Ohio, having been incorporated on May 18, 1993, with its registered office being located at 925 Euclid Street, Cleveland, Ohio 44115, and the name of its registered agent being C T Corporation; and

 

WHEREAS, West is a corporation duly organized and existing under the laws of the State of California, having been incorporated on May 18, 1993, with its registered office being located at 818 West Seventh Street, Los Angeles, California 90017, and the name of its registered agent being C T Corporation; and

 

WHEREAS, Central is a corporation duly organized and existing under the laws of the State of Texas, having been incorporated on March 15, 1995, with its registered office, being located at 3030 LBJ Freeway, 7th Floor, Dallas, Texas 75234, and the name of its registered agent being James E. Maser; and

 

WHEREAS, Metropolitan is a corporation duly organized and existing under the laws of the State of Texas, having been incorporated on August 11, 1992, with its registered office being located at 3030 LBJ Freeway, 7th Floor, Dallas, Texas 75234, and the name of its registered agent being James E. Maser; and

 

WHEREAS, Society is a corporation duly organized and existing under the laws of the State of Nevada, having been incorporated on March 26, 1996, with its registered office being located at One East First Street, Reno, Nevada 89501, and the name of its registered agent being The Corporation Trust Company of Nevada; and

 

WHEREAS, the authorized capital stock of SMI consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

2


 

WHEREAS, the authorized capital stock of Capital consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

WHEREAS, the authorized capital stock of Chicago consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

WHEREAS, the authorized capital stock of Detroit consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

WHEREAS, the authorized capital stock of Cincinnati consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

WHEREAS, the authorized capital stock of West consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

WHEREAS, the authorized capital stock of Central consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

WHEREAS, the authorized capital stock of Metropolitan consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Society; and

 

WHEREAS, the authorized capital stock of Society consists of 1,000 shares of common stock, par value $1.00 per share, of which 1,000 shares are issued and outstanding and owned by Club Corporation of America; and

 

WHEREAS, the Board of Directors of the Constituent Corporations, respectively, deem it advisable for the general welfare and advantage of the Constituent Corporations, that the Constituent Corporations merge into a single corporation pursuant to this Agreement, and the Constituent Corporations respectively desire to so merge pursuant to this Agreement and pursuant to the applicable provisions of the laws of the States of Nevada.

 

3


 

NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereby agree, in accordance with the applicable provisions of the laws of the State of Nevada that the Constituent Corporations shall be merged into a single corporation, to wit: Society Management, Inc., a Nevada corporation, one of the Constituent Corporations, which is not a new corporation, and which shall continue its corporate existence and be the corporation surviving the merger, and the terms and conditions of the merger hereby agreed upon (hereinafter called the “Merger”) which the parties covenant to observe, keep, and perform, and the mode of carrying the same into effect are and shall be as hereafter set forth:

 

ARTICLE 1.

 

EFFECTIVE TIME OF THE MERGER

 

1.1.        At the effective time of the Merger, the separate existence of the Merged Corporations shall cease and shall be merged into the Surviving Corporation. Consummation of this Agreement shall be effected on the date on which the Articles of Merger in substantially the form annexed hereto as Exhibit “A” are filed in the office of the Secretary of State of the State of Nevada.

 

ARTICLE 2.

 

GOVERNING LAW;
CERTIFICATE OF INCORPORATION

 

2.1.        The laws which are to govern the Surviving Corporation are the laws of the State of Nevada. The Articles of Incorporation of Society, shall, at the effective time of the Merger, remain in effect and unchanged thereafter until the same shall be further amended or altered in accordance with the provisions thereof.

 

ARTICLE 3.

 

BYLAWS

 

3.1.        The bylaws of Society, shall, at the effective time of the Merger, remain in effect and unchanged thereafter until the same shall be further amended or altered in accordance with the provisions thereof.

 

ARTICLE 4.

 

DIRECTORS AND OFFICERS

 

4.1.        The directors of Society at the effective time of the Merger shall be the directors of the Surviving Corporation until

 

4


 

their respective successors are duly elected and qualified. Subject to the authority of the Board of Directors, as provided by law and the bylaws of the Surviving Corporation, the officers of Society at the effective time of the Merger shall be the officers of the Surviving Corporation.

 

ARTICLE 5.

 

CONVERSION OF SHARES IN THE MERGER

 

5.1.        The mode of carrying into effect the Merger provided in this Agreement and the manner and basis of converting the shares of the Constituent Corporations into shares of the Surviving Corporation are as follows:

 

5.1.1.       Society’s Common Stock. None of the shares of common stock, par value $1.00 per share, of Society issued at the effective time of the Merger shall be converted as a result of the Merger, but all of such shares shall remain issued shares of common stock of the Surviving Corporation.

 

5.1.2.       SMI’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of SMI issued and outstanding shall be cancelled and not converted.

 

5.1.3.       Capital’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of Capital issued and outstanding shall be cancelled and not converted.

 

5.1.4.       Chicago’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of Chicago issued and outstanding shall be cancelled and not converted.

 

5.1.5.       Detroit’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of Detroit issued and outstanding shall be cancelled and not converted.

 

5.1.6.       Cincinnati’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of Cincinnati issued and outstanding shall be cancelled and not converted.

 

5.1.7.       West’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of West issued and outstanding shall be cancelled and not converted.

 

5


 

5.1.8.       Central’s Common stock. At the effective time of the merger, each share of common stock, par value $1.00 per share, of central issued and outstanding shall be cancelled and not converted.

 

5.1.9.       Metropolitan’s Common Stock. At the effective time of the Merger, each share of common stock, par value $1.00 per share, of Metropolitan issued and outstanding shall be cancelled and not converted.

 

5.1.10.     Surrender of Merged Corporations’ Certificates. As soon as practicable after the Merger becomes effective, the stock certificates representing common stock of the Merged Corporations issued and outstanding at the time the Merger becomes effective shall be surrendered, as above provided.

 

ARTICLE 6.

 

EFFECT OF THE MERGER

 

6.1.        At the effective time of the Merger, the Surviving Corporation shall succeed to, without other transfer, and shall possess and enjoy all the rights, privileges, immunities, powers, and franchises, both of a public and a private nature, and be subject to all the restrictions, disabilities, and duties of the Constituent. Corporations, and all the rights, privileges, immunities, powers, and franchises of the Constituent Corporations and all property, real, personal, and mixed, and all debts due to the Constituent Corporations on whatever account, for stock subscriptions, as well as for all other things in action or belonging to said corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, immunities, powers, and franchises, and all and every other interest shall be thereafter as effectually the property of the Surviving Corporation as they were of the respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in any Constituent Corporation shall not revert or be in any way impaired by reason of the Merger; provided, however, that all rights of creditors and all liens upon any property of any Constituent Corporation shall be preserved unimpaired, limited in lien to the property affected by such liens at the effective time of the Merger, and all debts, liabilities, and duties of said Constituent Corporations, respectively, shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities, and duties had been incurred or contracted by the Surviving Corporation.

 

6


 

ARTICLE 7.

 

ACCOUNTING MATTERS

 

7.1.        The assets and liabilities of the Constituent Corporations as of the effective time of the Merger shall be taken up on the books of the Surviving Corporation at the amounts at which they shall be carried at that time on the books of the respective Constituent Corporations. The amount of capital of the Surviving Corporation after the Merger shall be equal to the sum of the aggregate par value of the common stock that will remain issued upon the Merger. The surplus of the Surviving Corporation after the Merger, including any surplus arising in the Merger, shall be available to be used for any legal purposes for which surplus may be used.

 

ARTICLE 8.

 

APPROVAL OF SHAREHOLDERS;
FILING OF CERTIFICATE OF MERGER

 

8.1.        This Agreement has not been submitted to Club Corporation of America, as the shareholder of the Surviving Corporation, since pursuant to Nevada Revised Statutes 78.454 the Plan and Agreement of Merger requires no action of the stockholders of the Surviving Corporation, if (a) the articles of incorporation of the surviving corporation will not differ from its articles before the merger; (b) each stockholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights immediately after the merger; (c) the number of voting shares outstanding immediately after the merger will not exceed the total number of shares of the surviving corporation outstanding immediately before the merger; and (d) the number of participating shares outstanding immediately after the merger will not exceed the total number of participating shares outstanding immediately before the merger. Articles of Merger in substantially the form annexed hereby as Exhibit “A” shall be signed, verified, and delivered to the Secretary of State of the State of Nevada for filing.

 

ARTICLE 9.

 

REPRESENTATIONS AND WARRANTIES OF MERGED CORPORATIONS

 

9.1.        The Merged Corporations represent and warrant to the Surviving Corporation as follows:

 

7

 

9.1.1.           Organization, Etc. The Merged Corporations are duly organized, validly existing, and in good standing under the laws of the States of Florida, District of Columbia, Illinois, Michigan, Ohio, California and Texas, respectively. The Merged Corporations have corporate power to carry on its business as it is now being conducted and is qualified to do business in every jurisdiction in which the character and location of the assets owned by them or the nature of the business transacted by them requires qualification.

 

9.1.2.           Capitalization. The capitalization of each of the Merged Corporations consists of 1,000 authorized shares of common stock (par value $1.00 per share), of which 1,000 shares are issued and outstanding, as of the date hereof, and are owned by Society Management, Inc.. Each issued share is validly issued, fully paid, and nonassessable.

 

9.2.          Further Warranties and Representations.

 

9.2.1.           The Merged Corporations have and on the closing date will have good and marketable title in fee simple to all lands and buildings shown as assets in its records and books of account, free and clear of all liens, encumbrances, and charges, except as reflected in the aforesaid financial statements and except for current taxes and assessments not delinquent and liens, encumbrances, and charges shown in its records and books of account which are not substantial in character or amount, and which do not materially detract from the value or interfere with the use of the properties subject thereto or affected thereby. The Merged Corporations have and on the effective date of Merger will have valid leases under which it is entitled to occupy and use in its business all real property of which it is lessee, and the Merged Corporations have no knowledge of any default under any such lease.

 

9.2.2.           The Merged Corporations have and on the effective date of Merger will have good and marketable title to the machinery, equipment, merchandise, materials, supplies, and other property of every kind, tangible or intangible, contained in its offices, plants, and other facilities, or shown as assets of all records and books of account, free and clear of all liens, encumbrances, and charges, except as reflected in its financial statements and except for liens, encumbrances, and charges, if any, which do not materially detract from the value of or interfere with the use of the properties subject thereto or affected

 

8


 

thereby. The Merged Corporations have and on the effective date of Merger will have valid leases under which it is entitled to use in its business all personal property of which it is lessee, and the Merged Corporations have no knowledge of any default under any such lease.

 

9.2.3.           All taxes imposed by the United States of America or by any foreign country or by any state, municipality, subdivision, or instrumentality of the United States of America or of any foreign country or by any other taxing authority which are due or payable by the Merged Corporations, and all price redetermination or renegotiation claims asserted or that may be asserted against it have been paid in full or are adequately provided for by reserves shown in the records and books of account of the Merged Corporations and will be so paid or provided for on the closing date. The Merged Corporations have no knowledge of any unassessed tax deficiency proposed or threatened against it.

 

9.2.4.           The Merged Corporations are adequately insured with respect to risks normally insured against by companies similarly situated. All such policies are in full force and effect.

 

9.2.5.           There are no suits, actions, or legal or administrative proceedings pending or, to the knowledge of the Merged Corporations threatened against them which, if adversely determined, might materially and adversely affect the financial condition of the Merged Corporations or the conduct of its business, nor are there any decrees, injunctions, or orders of any court, governmental department, or agency outstanding against the Merged Corporations having any such effect.

 

9.2.6.           The Merged Corporations are not in default in any material respect under the terms of any material outstanding contracts, agreements, leases, or other commitments.

 

9.2.7.           At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of or constitute a default under any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Merged Corporations are a party.

 

9


 

9.2.8.           The Merged Corporations have all necessary licenses, franchises, permits, and other governmental authorizations and are valid and sufficient for all businesses presently carried on by the Merged Corporations.

 

ARTICLE 10.

 

REPRESENTATIONS AND WARRANTIES OF SURVIVING CORPORATION

 

10.1.        The Surviving Corporation represents and warrants to the Merged Corporations as follows:

 

10.1.1.         Organization. The Surviving Corporation is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada. The Surviving Corporation has corporate power to carry on its business as it is now being conducted and is qualified to do business in every jurisdiction in which the character and location of the assets owned by it or the nature of the business transacted by it require qualification.

 

10.1.2.         Capitalization. The Surviving Corporation’s capitalization consists of 1,000 authorized shares of common stock (par value $1.00 per share), of which 1,000 shares are issued and outstanding, as of the date hereof, and are owned by Club Corporation of America. Each issued share is validly issued, fully paid, and nonassessable.

 

10.1.3.         Litigation and Proceedings. There is no suit, action, or legal or administrative proceeding pending or, to the knowledge of the Surviving Corporation, threatened against it which, if adversely determined, might materially and adversely affect the financial condition of the Surviving Corporation or the conduct of its business, nor is there any decree, injunction, or order of any court, governmental department, or agency outstanding against the Surviving Corporation having any such effect.

 

10.1.4.         Material Contracts. The Surviving Corporation is not in default in any material respect under the terms of any material outstanding contract, agreement, lease, or other commitment.

 

10.1.5.         No Conflict with Other Instruments. At the effective time of the Merger, the consummation of the transactions contemplated by this Plan will not result in the breach of any term or provision of, nor

 

10


 

constitute a default under, any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Surviving Corporation is a party.

 

10.1.6.         Governmental Authorizations. The Surviving Corporation has all necessary licenses, franchises, permits, and other governmental authorizations and such are valid and sufficient for all businesses presently carried on by it.

 

ARTICLE 11.

 

CONDUCT OF BUSINESS PENDING THE MERGER

 

11.1.        From and after the date of this Agreement and prior to the effective time of the Merger, no Constituent Corporation will, without the prior written consent of the other Constituent Corporation, (i) amend its Certificate of Incorporation or Bylaws, except as may be necessary to enable it to carry out the provisions of this Agreement, (ii) engage in any material activity or transaction or incur any material obligation (by contract or otherwise), except in the ordinary course of business, (iii) issue rights or options to purchase or subscribe to any shares of its capital stock or subdivide or otherwise change any such shares, (iv) issue or sell any shares of its common stock or securities convertible into shares of its common stock, or (v) declare or pay any dividends on or make any distributions in respect of any shares of its common stock.

 

ARTICLE 12.

 

CONDITIONS PRECEDENT;
TERMINATION; GENERAL PROVISIONS

 

12.1.        Conditions Precedent to the Merged Corporations’ Obligations. The Obligation of the Merged Corporations to effect the Merger shall be subject to the following conditions, which may be waived in writing by the Merged Corporations:

 

12.1.1.         The representations and warranties of the Constituent Corporations herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; the other Constituent Corporations shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by them prior to the effective time of the Merger.

 

12.1.2.         No material change in the corporate status, businesses, operations, or financial condition of the other Constituent Corporation shall have

 

11


 

occurred since the date of the financial statements provided (whether or not covered by insurance), other than changes in the ordinary course of business, none of which has been materially adverse in relation to the Constituent Corporations, taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations, or financial condition of the Constituent Corporations, taken as a whole.

 

12.2.        Conditions Precedent to Society’s Obligation. The obligation of Society to effect the Merger shall be subject to the following conditions, which may be waived in writing by Society:

 

12.2.1.         The representations and warranties of the other Constituent Corporation herein contained shall be true as of and at the effective time of the Merger with the same effect as though made at such time; the other Constituent Corporation shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the effective time of the Merger.

 

12.2.2.         No material change in the corporate status, businesses, operations or financial condition of the other Constituent Corporation shall have occurred since the date of the financial statements provided (whether or not covered by insurance), other than changes in the ordinary course of business, none of which has been materially adverse in relation to the other Constituent Corporation, taken as a whole, and no other event or condition of any character shall have occurred or arisen since that date which shall have materially and adversely affected the corporate status, businesses, operations, or financial condition of the other Constituent Corporation, taken as a whole.

 

12.3.        Termination and Abandonment. Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and abandoned at any time before the effective time of the Merger, whether before or after adoption or approval of this Agreement under any one or more of the following circumstances:

 

12.3.1.         By the mutual consent of the Board of Directors of the Constituent Corporations, respectively;

 

12.3.2.         By the Merged Corporations if, prior to the effective time of the Merger, the conditions set forth in Section 12.3 shall not have been met.

 

12


 

12.3.3.         By Society if, prior to the effective time of the Merger, the conditions set forth in Section 12.4 shall not have been met.

 

Upon any such termination and abandonment, no party shall have any liability or obligation hereunder to the other parties.

 

12.4.        Amendments. Any of the terms or conditions of this Agreement may be modified or waived at any time before the effective time of the Merger by the party which is, or the shareholders of which are, entitled to the benefit thereof upon the authority of the Board of Directors of such party, provided that any such modification or waiver shall, in the judgment of the party making it, not affect substantially or materially and adversely the benefits to such party or its shareholders intended under this Agreement.

 

IN WITNESS WHEREOF, this Agreement has been signed by the duly authorized officers of each of the Constituent Corporations.

 

 

 

SMI

 

 

Attest:

SOCIETY MANAGEMENT, INC.

 

a Florida corporation

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

 

 

 

 

 

 

 

Capital

 

 

 

Attest:

 

CAPITAL SOCIETY OF CLUBS, INC.
a District of Columbia corporation

 

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

13


 

 

 

Chicago

 

 

 

Attest:

 

CHICAGO SOCIETY OF CLUBS, INC.
an Illinois corporation

 

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

 

 

 

 

 

 

 

Detroit

 

 

 

Attest:

 

DETROIT SOCIETY OF CLUBS, INC.
a Michigan corporation

 

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

 

 

 

 

 

 

 

Cincinnati

 

 

 

Attest:

 

CINCINNATI SOCIETY OF CLUBS, INC.
a Ohio corporation

 

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

 

 

 

 

 

 

 

West

 

 

 

Attest:

 

SOCIETY MANAGEMENT WEST, INC.
a California corporation

 

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

14


 

 

 

Central

 

 

 

Attest:

 

SOCIETY MANAGEMENT CENTRAL, INC.
a Texas corporation

 

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

 

 

 

 

 

 

 

Metropolitan

 

 

 

Attest:

 

METROPOLITAN SOCIETY, INC.
a Texas corporation

 

 

 

 

 

 

/s/ Terry A. Taylor

 

/s/ Jack T. Lupton

Terry A. Taylor
Secretary

 

Jack T. Lupton
Vice President

 

15

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Society Management, Inc., a Florida corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Society Management, Inc., a Florida corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

16


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Capital Society of Clubs, Inc., a District of Columbia corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Capital Society of Clubs, Inc., a District of Columbia corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

17


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Chicago Society of Clubs, Inc., an Illinois corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Chicago Society of Clubs, Inc., an Illinois corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

18


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Detroit Society of Clubs, Inc., a Michigan corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Detroit Society of Clubs, Inc., a Michigan corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

19


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Cincinnati Society of Clubs, Inc., an Ohio corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Cincinnati Society of Clubs, Inc., an Ohio corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

20


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Society Management West, Inc., a California corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Society Management West, Inc., a California corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

21


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Society Management Central, Inc., a Texas corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Society Management Central, Inc., a Texas corporation, known to me to be one person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

22


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Jack T. Lupton, Vice President of Metropolitan Society, Inc., a Texas corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Metropolitan Society, Inc., a Texas corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

23


 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared James M. Hinckley, President of Society Management, Inc., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

STATE OF TEXAS

}

 

}

COUNTY OF DALLAS

}

 

BEFORE ME, the undersigned authority, on this day personally appeared Terry A. Taylor, Secretary of Society Management, Inc., a Nevada corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of said corporation and in the capacity therein stated.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 30 day of August, 1996.

 

 

/s/ Julie H. Green

[Notary Public Seal]

Notary Public, State of Texas

 

24


 EX-3.137(B) 275 a2202241zex-3_137b.htm EX-3.137(B)

Exhibit 3.137(b)

 

BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
SOCIETY MANAGEMENT, INC.

 

ARTICLE I

 

OFFICES

 

Section 1.  Principal Office. The corporation will maintain offices for the transaction of business of the corporation at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

Section 2.  Other Offices. Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

ARTICLE II

 

MEETINGS OF SHAREHOLDERS

 

Section 1.  Place of Meetings. All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or (ii) consented to by the written consent of all shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

Section 2.  Annual Meetings. The annual meeting of shareholders shall be on the 2nd Monday of February in each year at 10:00 a.m.; provided, however, that should said day fall upon a legal holiday, then any such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such meetings, Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the power of the shareholders.

 

Section 3.  Special Meetings. Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the

 

1


 

officer, not less than ten (10) nor more than sixty (60) days after the receipt of the request.

 

Section 4.  Notice of Meeting. Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of shares, securities, or any other consideration (other than money) in the process of winding up.

 

Section 5.  Consent of Absentees. The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

Section 6.  Quorum. The presence in person or by proxy of persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

Section 7.  Voting. Unless a record date for voting purposes be fixed, as hereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the

 

2


 

Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

Section 8.  Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

Section 9.  Adjourned Meetings and Notice Thereof. Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

Section 10.  Action Without Meeting. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting and filed with the Secretary of the corporation; provided, however, a meeting shall be held for dissolution, transfer of all or substantially all of the assets of the corporation, or for merger or consolidation of the corporation with other corporations, if same is required under applicable law.

 

ARTICLE III

 

DIRECTORS

 

Section 1.  Powers. Subject to limitations imposed by law or by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to

 

3


 

the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

Section 2.  Number of Directors. The authorized number of Directors of the corporation shall be not less than one nor more than five until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

Section 3.  Election and Term of Office. The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

Section 4.  Vacancies. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of his term of office.

 

Section 5.  Quorum. A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly

 

4


 

held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

Section 6.  Place of Directors’ Meetings. Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

Section 7.  Regular Meetings. Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

Section 8.  Special Meetings. Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each Director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or telegraphed shall be deposited in the United States mail or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting.

 

Section 9.  Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

Section 10.  Waiver of Notice: Consent to Meeting. The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

5


 

Section 11.  Adjournment. A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

Section 12.  Action Without Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

Section 13.  Fees and Compensation. Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

Section 14.  Indemnification of Directors, Officers and Employees.

 

A.     In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitable merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in

 

6


 

the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

B.      Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a present or former Director, officer or employee of the corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

C.      The provisions of this Section shall apply to the estate, executor, administrator, heirs, legatees or devisees of any such present or former Director, officer or employee of the corporation.

 

D.      The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to indemnification hereunder, provided the premiums on such combined policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV

 

OFFICERS

 

Section 1.  Officers. The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

Section 2.  Other Officers. The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant

 

7


 

Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

Section 3.  Removal and Resignation. Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4.  Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

Section 5.  Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

Section 6.  President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, at all meetings of the Board of Directors. He shall be an ex officio member of all the standing committees, including the Executive Committee, if any, and shall have the general powers and duties of management usually vested in the office of the President of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors.

 

Section 7.  Vice President. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and

 

8


 

perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors.

 

Section 8.  Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of the corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 9.  Treasurer. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

9


 

ARTICLE V

 

MISCELLANEOUS

 

Section 1.  Record Date and Closing Stock Books. The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

Section 2.  Inspection of Corporate Records. The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

Every Director shall have the right at any reasonable time to inspect the books, records, documents of every kind, and the physical properties of the corporation and of its subsidiary corporations, domestic or foreign.

 

Section 3.  Certificates for Shares. A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit

 

10


 

the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

Section 4.  Transfer of Stock. The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

Section 5.  Lost Certificates. New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

Section 6.  Corporate Seal. A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

Section 7.  Contracts - Execution of Documents. The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

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All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of or payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

Section 8.  Representation of Shares of Other Corporations. The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 9.  Inspection of Bylaws. The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VI

 

AMENDMENTS

 

Section 1.  Power of Shareholders. New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

Section 2.  Power of Directors. Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

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 EX-3.138(A) 276 a2202241zex-3_138a.htm EX-3.138(A)

Exhibit 3.138(a)

 

ARTICLES OF
AMENDMENT AND RESTATEMENT
OF THE
ARTICLES OF INCORPORATION
OF
SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC.

 

Southern Trace Country Club of Shreveport, Inc., a Louisiana corporation (the “Corporation”), through its undersigned President and Secretary and by authority of its Board of Directors, does hereby certify that:

 

I.

 

The Amended and Restated Articles of Incorporation set forth in paragraph V below accurately copies the Articles of Incorporation and all amendments thereto in effect on the date hereof without any substantive changes except as made by the new amendments described in paragraph V below.

 

II.

 

Each amendment has been effected in conformity with law.

 

III.

 

The date of incorporation was April 22, 1991, and the date of these Amended and Restated Articles of Incorporation is November 9, 2010.

 

IV.

 

On November 9, 2010, amendments to the Articles of Incorporation of the Corporation were duly adopted pursuant to a Unanimous Written Consent of the Shareholders of the Corporation. Such amendments: Article 10, Subsection (xviii) has been deleted and subsequent subsections have been renumbered accordingly.

 

V.

 

The Amended and Restated Articles of Incorporation of the Corporation shall read as set forth below:

 

1


 

SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC.

 

FIRST.                    The name of the corporation is Southern Trace Country Club of Shreveport, Inc. (the “Corporation”).

 

SECOND.               The address of the Corporation’s registered office in the State of Louisiana is 320 Somerulos Street in the City of Baton Rouge, East Baton Rouge Parish 70802-6129. The name of its registered agent at such address is Corporation Service Company.

 

THIRD.                  The Corporation has been formed for the following purposes:

 

(a)           to own that certain parcel of real property, together with all improvements located thereon, currently known as the Southern Trace Country Club, in the City of Shreveport, State of Louisiana (the “Property”) and to operate or cause the Property to be operated;

 

(b)           to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)           to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)           to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)           to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the State of Louisiana.

 

FOURTH.              The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.                   [Reserved].

 

SIXTH.                   Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

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SEVENTH.

 

(a)           The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)           The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.                In furtherance and not in limitation of the powers conferred by the laws of the State of Louisiana, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.                  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.                 A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Law of the State of Louisiana as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH.          The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Louisiana at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH.           [Reserved].

 

THIRTEENTH.             The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any

 

3


 

such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.         The period of the Corporation’s duration is perpetual.

 

4


 

 

IN WITNESS WHEREOF, the undersigned officer of the Corporation as executed these Articles of Amendment this 10th day of November, 2010.

 

 

 

SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC.

 

 

 

By:

/s/ Eric Affeldt

 

 

Eric Affeldt, President

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 

 

ACKNOWLEDGMENT

 

 

 

 

 

STATE OF TEXAS

 

 

 

COUNTY OF DALLAS

 

 

 

BEFORE ME, the undersigned authority, personally came and appeared, Eric Affeldt and Ingrid Keiser, personally known to me, who, being duly sworn, did depose and state that they are the President and Secretary, respectively, of Southern Trace Country Club of Shreveport, Inc., and in said capacities executed the foregoing Amended and Restated Articles of Incorporation, upon and pursuant to the authority of the shareholders of said corporation, and as its and their free act and deed.

 

 

 

/s/ Eric Affeldt

 

Eric Affeldt, President

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

 

Sworn to and subscribed before me, this 12th day of November, 2010.

 

 

 

 

 

/s/ Laine A. Schroeder

 

NOTARY PUBLIC

 


 EX-3.138(B) 277 a2202241zex-3_138b.htm EX-3.138(B)

Exhibit 3.138(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Louisiana, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after eleven months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to wild are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

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Section 1.10.  Action By Written Consent of Shareholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Louisiana, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Louisiana and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Louisiana whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person if such Covered Person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

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Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.139(A) 278 a2202241zex-3_139a.htm EX-3.139(A)

Exhibit 3.139(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

STONEBRIAR MANAGEMENT CORP.

 

Stonebriar Management Corp. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is Stonebriar Management Corp.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.                            The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF STONEBRIAR MANAGEMENT CORP.”

 

2.                            The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Stonebriar Management Corp. The Corporation is a for-profit corporation.

 

3.                            The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Stonebriar Country Club, in the City of Frisco, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                          The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                          The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

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Martin J. Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

6.                            The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                            The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                            The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.              THE EXISTING CHARTER IS HEREBY AMENDED BY AMENDING ARTICLE XIV TO READ IN ITS ENTIRETY AS FOLLOWS:

 

ARTICLE XIV

 

Reserved.

 

10.                      The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                      The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of Stonebriar Management Corp. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

STONEBRIAR MANAGEMENT CORP.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

Exhibit A

 

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AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
STONEBRIAR MANAGEMENT CORP.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Stonebriar Management Corp. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Stonebriar Country Club, in the City of Frisco, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

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ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

3


 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its

 

4


 

debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

5


 EX-3.139(B) 279 a2202241zex-3_139b.htm EX-3.139(B)

Exhibit 3.139(b)

 

AMENDED AND RESTATED BYLAWS

OF

STONEBRIAR MANAGEMENT CORP.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or, such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.140(A) 280 a2202241zex-3_140a.htm EX-3.140(A)

Exhibit 3.140(a)

 

ARTICLES OF RESTATEMENT OF

 

STONEHENGE CLUB, INC.

 

The undersigned corporation, pursuant to Title 13.1, Chapter 9, Article 11 of the Code of Virginia, hereby executes the following articles of restatement and sets forth:

 

1.         The name of the corporation immediately prior to restatement is Stonehenge Club, Inc.

 

2.         The restatement contains an amendment to the articles of incorporation.

 

3.         The text of the amended and restated articles of incorporation is attached hereto.

 

4.         The restatement was adopted by the corporation on November 9, 2010.

 

5.         The restatement was adopted by unanimous consent of the shareholders.

 

Executed in the name of the corporation by:

 

 

/s/ Ingrid Keiser

 

November 10, 2010.

 

 

 

Ingrid Keiser

 

Secretary

 

 

 

 

 

 

0443288 6

 

(telephone number (optional))

 


 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

STONEHENGE CLUB, INC.

 

Pursuant to Section 13.1-711 of the Virginia Stock Corporation Act, the Articles of Incorporation of Stonehenge Club, Inc. are hereby amended and restated to read as follows:

 

FIRST. The name of the corporation is Stonehenge Club, Inc. (the “Corporation”).

 

SECOND. A. The name of the corporation’s registered agent is Corporation Service Company.

 

B. The registered agent is (mark appropriate box):

 

(1)

          an individual who is a resident of Virginia and

 

o       an initial director of the corporation.

 

o       a member of the Virginia State Bar.

 

OR

 

 

(2)

x       a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)       to own that certain parcel of real property, together with all improvements located thereon, currently known as Stonehenge Golf & Country Club, in the City of Richmond, State of Virginia (the “Property”) and to operate or cause the Property to be operated;

 

(b)      to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)       to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

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(d)      to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)       to engage in any lawful activities and to exercise such powers permitted to corporations under the Virginia Stock Corporation Act.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. [Reserved]

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)       The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)      The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in the manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Virginia,  the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. [Reserved.]

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under Virginia Stock Corporation Act as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or

 

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protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Virginia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. [Reserved.].

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH: Corporate action required or permitted by Chapter 9 of the Virginia Stock Corporation Act may be taken without a meeting and without prior notice, if the corporate action is taken by a written consent signed by shareholders who would be entitled to vote at a meeting of holders of outstanding shares having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take the corporate action at a meeting at which all shareholders entitled to vote thereon were present and voted.

 

SIXTEENTH. These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 13.1-711 of the Virginia Stock Corporation Act. These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

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 EX-3.140(B) 281 a2202241zex-3_140b.htm EX-3.140(B)

Exhibit 3.140(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

STONEHENGE CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the Commonwealth of Virginia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken unless the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, in which event the Board of Directors shall fix a new record date. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.  Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.  Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the Commonwealth of Virginia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. Except to the extent required by the Corporation’s Articles of Incorporation, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the Commonwealth of Virginia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the Commonwealth of Virginia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

13


 EX-3.141(A) 282 a2202241zex-3_141a.htm EX-3.141(A)

Exhibit 3.141(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

TAMPA PALMS CLUB, INC.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Tampa Palms Club, Inc. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Tampa Palms Club, Inc.  The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on December 4, 1992.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The Articles of Incorporation of the Corporation are amended and restated to read in their entirety as follows:

 

ARTICLE I

 

The name of the Corporation is Tampa Palms Club, Inc.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

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(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as the Tampa Palms Golf & Country Club, in the City of Tampa, State of Florida (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

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ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

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ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation – Tampa Palms Club, Inc.

 


 EX-3.141(B) 283 a2202241zex-3_141b.htm EX-3.141(B)

Exhibit 3.141(b)

 

BYLAWS OF

 

TAMPA PALMS CLUB, INC.

 

ARTICLE I.

 

OFFICES

 

A. Registered Office

 

The registered office of the corporation is located at 1200 South Pine Island Road, Plantation, Florida 33324.

 

B. Registered Agent

 

The name of the registered agent of the corporation at such address is C.T. Corporation System.

 

C. Principal Office

 

The Board of Directors pursuant to a properly authorized resolution has full power and authority to change the principal office from one location to another.

 

D. Other Offices

 

The corporation may also have offices at such other places, within or without the State of Florida, where the corporation is qualified to do business, as the Board of Directors may from time to time designate, or the business of the corporation may require.

 

ARTICLE II.

 

SHAREHOLDERS MEETINGS

 

A. Place of Meetings

 

Meeting of shareholders shall be held at any place designated by the Board of Directors pursuant to authority hereinafter granted to the Board, or by the written consent of all persons entitled to vote thereat. In the absence of any such designation, shareholders’ meeting shall be held at the registered office of the corporation. Any meeting is valid wherever held if held by the written consent of all the persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation.

 

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B. Time of Annual Meeting — Business Transacted

 

The annual meeting of shareholders shall be held on the third (3rd) Wednesday of December of each year, at the hour of 10:00 a.m., provided, however, that should said day fall upon a legal holiday, then at the same time on the next business day thereafter. At such meetings Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted that is within the powers of the shareholders.

 

C. Failure to Hold Annual Meeting

 

If, within any 13-month period, an annual meeting of shareholders is not held, any shareholder may apply to any court of competent jurisdiction in the county in which the principal office of the corporation is located for a summary order that an annual meeting be held.

 

D. Conduct of Meetings

 

At every meeting of the shareholders, the President, or, in the President’s absence, a Vice President designated by the President, or, in the absence of such designation, any other person chosen by a majority of the shareholders of the corporation present in person or by proxy and entitled to vote, shall act as chairman of the shareholders’ meeting. The Secretary of the corporation, or, in the Secretary’s absence, an Assistant Secretary, shall act as Secretary of all meetings of the shareholders. In the absence of the Secretary or Assistant Secretary, the Chairman may appoint another person to act as Secretary of the meeting.

 

E. Action Without Meeting

 

Any action that, under any provision of the Florida Business Corporations Act, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized in writing, signed by all of the persons who would be entitled to vote on that action at a meeting, and filed with the Secretary of the corporation. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the corporation.

 

F. Telephone Meetings

 

Subject to the notice provisions required by these Bylaws and by the Florida Business Corporations Act, shareholders may participate in and hold a meeting by means of conference telephone or similar communications equipment by which all persons participating can hear each other. Participation in such a meeting shall constitute presence in person at such meeting, except participation for the express purpose of objecting to the

 

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transaction of any business on the ground that the meeting is not lawfully called or convened.

 

G. Notice of Meetings

 

(1) Notice of all meetings of shareholders shall be given in writing to shareholders entitled to vote by the President or Secretary or by the officer or person calling the meeting, or, in case of that person’s neglect or refusal, or if there is no person charged with the duty of giving notice, by a Director or shareholder. The notice shall be given to each shareholder, either personally or by prepaid mail, addressed to the shareholder at his address as it appears on the transfer books of the corporation.

 

(2) Notice of any meeting of shareholders shall be sent to each shareholder entitled thereto not less than ten (10) nor more than fifty (50) days before the meeting.

 

(3) Notice of any meeting of shareholders shall specify the place, date, and hour of the meeting. The notice shall also specify the purpose of the meeting if it is a special meeting, or if its purpose, or one of its purposes, will be to consider a proposed amendment of the articles of incorporation, to consider a proposed reduction of stated capital without amendment, to consider a proposed merger or consolidation, to consider a voluntary dissolution or the revocation of a voluntary dissolution by act of the corporation, or to consider a proposed disposition of all, or substantially all, of the assets of the corporation outside of the ordinary course of business.

 

(4) When a shareholders’ meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. When a meeting is adjourned for less than thirty (30) days, it is not necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted thereat other than by announcement at the meeting at which the adjournment is taken.

 

H. Waiver of Notice

 

Any notice required by law or by these Bylaws may be waived by execution of a written waiver of notice executed by the person entitled to the notice. The waiver may be signed before or after the time stated in the notice.

 

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I. Persons Entitled to Call Special Meetings

 

(1) Special meetings of the shareholders, for any purpose whatsoever, may be called at any time by any of the following: (a) the President; (b) the Board of Directors; (c) one or more shareholders holding not less than one tenth (1/10th) of all the shares entitled to vote at the meetings.

 

(2) Any person or persons, except the President and/or the Board of Directors, entitled under Subparagraph (1) above to call a special meeting of shareholders may do so only by written request sent by registered mail or delivered in person to the President or Secretary. The officer receiving the written request shall within ten (10) days from the date of its receipt cause notice of the meeting to be given in the manner provided in Paragraph G of Article II of these Bylaws to all shareholders entitled to vote at the meeting. If the officer does not give notice of the meeting within ten (10) days after the date of receipt of the written request, the person or persons calling the meeting may fix the time of meeting and give the notice in the manner provided in Paragraph G of Article II of these Bylaws. Nothing contained in this section shall be construed as limiting, fixing, or affecting the time of date when a meeting of shareholders called by action of the Board of Directors may be held.

 

J. Quorum of Shareholders

 

(1) The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting constitutes a quorum for the transaction of business.

 

(2) In the absence of a quorum or the withdrawal of enough shareholders to leave less than a quorum, any meeting of shareholders may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but no other business may be transacted.

 

K. Determination of Eligible Shareholders

 

(1) For the purposes of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper

 

4


 

purpose, the Board of Directors may provide that the share transfer books shall be closed for a stated period not to exceed, in any case, fifty (50) days. If the transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten (10) days immediately preceding such meeting.

 

(2) In lieu of closing the share transfer books, the Board of Directors may fix in advance a date as the record date for any determination of shareholders, such date in any case to be not more than fifty (50) days and, in case of a meeting of shareholders, not less than ten (10) days prior to the date on which the action requiring that determination of shareholders is to be taken.

 

(3) If the share transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring the dividend is adopted, as the case may be, is the record date for determination of shareholders.

 

(4) When any determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this Paragraph, that determination shall apply to any adjournment thereof except when the determination has been made through closing of the transfer books and the stated period of closing has expired, in which case the Board of Directors shall make a new determination as hereinbefore provided.

 

L. Votes Per Share

 

Each outstanding share, regardless of class, shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of shareholders. Cumulative voting is expressly prohibited.

 

M. Number of Votes Necessary to Take Action

 

The vote of the holders of a majority of the shares entitled to vote and represented at a meeting at which a quorum is present shall be the act of the shareholders’ meeting.

 

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N. Voting by Voice and Ballot

 

Elections for Directors need not be by ballot unless a shareholder demands election by ballot at the election and before the voting begins.

 

O. Other Corporation, Etc., as Shareholders

 

(1) Shares standing in the name of another corporation, domestic or foreign (including a foreign corporation without a permit to do business in the State of Florida), may be voted by that officer, agent, or proxy as the bylaws of that other corporation may authorize, or in the absence of such authorization, as the board of directors of that corporation may determine.

 

(2) Shares held by an administrator, executor, guardian, or conservator may be voted by that person without a transfer of the shares into his or her name, provided those shares form a part of the estate and are in the possession of that person. The shares may be voted either in person or by proxy.

 

(3) Shares standing in the name of a trustee may be voted by that trustee, either in person or by proxy, but only if the shares to be voted are in his name as trustee.

 

(4) Shares standing in the name of a receiver may be voted by that receiver. Shares held by or under the control of a receiver may be voted by that receiver without the transfer thereof into his or her name if authority to do so is contained in an appropriate order of the court by which that receiver was appointed.

 

(5) A shareholder whose shares are pledged shall be entitled to vote those shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the transferred shares.

 

P. Proxies

 

A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. Each proxy shall be revocable unless expressly provided therein to be irrevocable and unless otherwise made irrevocable by law.

 

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Q. Voting Trusts

 

Any number of shareholders of this corporation may create a voting trust for the purpose of conferring upon trustees the right to vote or otherwise represent their shares, for a period not to exceed ten (10) years. The members of the voting trust must enter into a written voting trust agreement transferring their shares to the trustees, and specifying the terms and conditions of the voting trust. A counterpart of the agreement must be deposited at this corporation’s registered office. The counterpart of the agreement will be subject to the same right of examination by any shareholder of the corporation, in person or by agent or attorney, as the rest of the books and records of the corporation, and will be subject to examination by any holder of a beneficial interest in the voting trust, either in person or by agent or attorney, at any reasonable time for any proper purpose.

 

R. Voting Agreement

 

Any number of shareholders of this corporation may enter into a voting agreement in writing for the purpose of voting their shares as a unit, in the manner prescribed in the agreement, on any matter submitted to a vote at any shareholders meeting, for a period not to exceed ten (10) years from the date of execution of the agreement. A counterpart of the agreement must be deposited at this corporation’s principal office. The counterpart of this agreement will be subject to the same right of examination by any shareholder of the corporation, in person or by agent or attorney, as the rest of the books and records of the corporation. Each certificate representing shares held by the parties to the agreement shall contain a statement that the shares represented by the certificate are subject to the provisions of a voting agreement, a counterpart of which has been deposited with the corporation at its principal office.

 

S. Appointment and Duties of Inspectors of Election

 

(1) In advance of any meeting of shareholders, the Board of Directors may appoint any person, other than nominees for office, as inspectors of election to act at that meeting or any adjournment thereof. If inspectors of election are not appointed, the chairman of any meeting may, and on the request of any shareholder or shareholder’s proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares present shall determine whether one or three inspectors are to be appointed. In case any person appointed as inspector fails to appear or fails or refuses to act, the vacancy may be filled by appointment

 

7


 

by the Board of Directors in advance of the meeting, or at the meeting by the person acting as chairman.

 

(2) The inspectors of election shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies. The inspectors shall also receive votes, ballots, or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine the result, and do such acts as may be proper to conduct the election or vote with fairness to all shareholders. The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability, and as expeditiously as is practical.

 

(3) If there are three inspectors of election the decision, act, or certificate of a majority is effective in all respects as the decision, act, or certificate of all.

 

(4) On request of the chairman of the meeting or of any shareholder or his proxy the inspectors shall make a report in writing of any challenge or question or matter determined by them and execute a certificate of any fact found by them. Any report or certificate made by them is prima facie evidence of the facts stated therein.

 

ARTICLE III.

 

DIRECTORS

 

A. Directors Defined

 

“Directors,” when used in relation to any power or duty requiring collective action, means “Board of Directors.”

 

B. Powers

 

The business and affairs of the corporation and all corporate powers shall be exercised by or under authority of the Board of Directors, subject to limitation imposed by the Florida Business Corporations Act, the Articles of Incorporation, or these Bylaws as to action that requires authorization or approval by the shareholders.

 

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C. Number of Directors

 

The number of Directors of this corporation shall be not less than one (1) nor more than five (five). The Directors do not need be shareholders or residents of the State of Florida. The maximum or the minimum number of Directors may be increased or decreased from time to time by amendment to these Bylaws, but no decrease shall have the effect of shortening the term of any incumbent Director. Each year at the meeting of the Shareholders which is called to elect Directors, the Shareholders shall first decide the number of Directors (between the maximum and the minimum) to be elected for that year. Such decision shall be by a vote of shareholders holding a majority of the outstanding shares entitled to vote at an election of Directors. If no such vote is taken, nor a motion made, duly seconded and carried calling for such vote, then it shall be conclusively presumed that the same number of Directors as were elected the immediately preceding year shall be elected and shall serve for that year.

 

D. Term of Office

 

The Director named in the articles shall hold office until the first annual or the organization meeting of shareholders and until his successors are elected and qualified, either at an annual or a special meeting of shareholders. Directors, elected or appointed other than named in the articles, shall hold office until the next annual meeting and until their successors are elected and qualified.

 

E. Vacancies

 

(1) Vacancies on the Board of Directors shall exist in the case of the occurrence of any of the following events: (a) the death, resignation, or removal of any Director; (b) the authorized number of Directors is increased; or (c) at any annual, regular, or special meeting of shareholders at which any Director is elected, the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

(2) Vacancies other than those caused by an increase in the number of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director. Each Director so elected shall hold office until his successor is elected at an annual, regular, or special meeting of the shareholders.

 

(3) Any vacancy caused by an increase in the number of Directors shall be filled by the shareholders at an

 

9


 

annual meeting or at a special meeting called for that purpose. The shareholders may also elect a Director at any time to fill any vacancy not filled by the Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders may elect a successor to take office when the resignation becomes effective.

 

(4) A reduction of the authorized number of Directors shall not remove any Director prior to the expiration of that Director’s term of office.

 

F. Removal of Directors

 

The entire Board of Directors or any individual Director may be removed from office by a vote of shareholders holding a majority of the outstanding shares entitled to vote at an election of Directors.

 

G. Place of Meetings

 

Regular meetings of the Board of Directors shall be held at any place within or without the State of Florida that may be designated from time to time by resolution of the Board or by written consent of all members of the Board. In the absence of such designation, regular meetings shall be held at the registered office of the corporation. Special meetings of the Board may be held either at a place so designated or at the registered office. Any regular or special meeting is valid, wherever held, if held on written consent of all members of the Board given either before or after the meeting and filed with the Secretary of the corporation.

 

H. Regular Meetings

 

(1) Regular meetings of the Board of Directors shall be held following each annual meeting of shareholders. No notice of such meeting need be given.

 

(2) The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, are as valid as though made at a meeting duly held after regular call and notice, if a quorum is present.

 

I. Call of Special Meeting

 

(1) Special meetings of the Board of Directors of this corporation shall be called by the President, or, if he is absent or is unable or refuses to act, by any Vice President or by any two (2) Directors.

 

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(2) Written notice of the time, place, and purpose of special meetings of the Board of Directors shall be delivered personally to each Director, or sent to each Director by mail or by other form of written communication, at least seven (7) days before the meeting. If the address of a Director is not shown on the records and is not readily ascertainable, notice shall be addressed to him at the city or place in which the meetings of the Directors are regularly held. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

J. Quorum

 

A majority of the authorized number of Directors constitutes a quorum of the Board for the transaction of business.

 

K. Majority Action

 

Every act or decision done or made by a majority of the Directors present at any duly held meeting at which a quorum is present is an act of the Board of Directors.

 

L. Action by Consent of Board Without Meeting

 

Any action required or permitted to be taken by the Board of Directors under any provision of the Florida Business Corporations Act may be taken without a meeting, if all members of the Board shall individually or collectively consent in writing to the action. The written consent or consents shall be filed with the minutes of the proceedings of the Board. Any action by written consent shall have the same force and effect as a unanimous vote of those consenting Directors. Any certificate or other document filed under any provision of the Florida Business Corporations Act that relates to action so taken shall state that the action was taken by unanimous written consent of the Board of Directors without a meeting and that these Bylaws authorize the directors to so act, and that statement shall be prima facie evidence of such authority.

 

M. Adjournment

 

(1) In the absence of a quorum a majority of the Directors may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

(2) Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

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N. Conduct of Meetings

 

At every meeting of the Board of Directors, if there is such an officer, and if not, the President, or in the President’s absence, a Vice President designated by the President, or in the absence of such designation, a chairman chosen by a majority of the Directors present, shall preside. The Secretary of the corporation shall act as Secretary of the Board of Directors. In case the Secretary shall be absent from any meeting, the chairman may appoint any person to act as Secretary of the meeting.

 

O. Telephone Meetings

 

Subject to the provisions for notice required by these Bylaws and the Florida Business Corporations Act for notice of meetings, Directors may participate in and hold a meeting by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Participation in the meeting shall constitute a presence in person at the meeting, except when a person participates in the meeting for the express purpose of objecting to the transactions of any business on the ground that the meeting is not lawfully called or convened.

 

P. Compensation

 

Directors shall receive such compensation, if any, for their services as Directors as shall be determined, from time to time by resolution of the Board. Any Director may serve the corporation in any other capacity as an officer, agent, employee, or otherwise and receive compensation therefor.

 

Q. Indemnification of Directors and Officers

 

(1) In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of this alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer of employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitably merits such indemnity. The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made

 

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either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

(2) Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interest of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

(3) The provisions of this Section shall apply to the estate, executor, administrator, heirs, legatees or devisees of any such present or former Director, officer or employee of the corporation.

 

(4) The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to policy are, in the judgement of the Board, fairly allocated between the corporation and the insured persons.

 

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R. Insurance on Directors, Officers, or Employees

 

The corporation may purchase and maintain insurance on behalf of any director, officer, employee, or agent of the corporation, or on behalf of any person serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against any liability asserted against that person and incurred by that person in any such capacity or arising out of any such status with regard to the corporation, whether or not the corporation has the power to indemnify that person against liability for any of those acts.

 

ARTICLE IV.

 

OFFICERS

 

A. Number and Titles

 

The officers of the corporation shall be a President, Vice Presidents, a Secretary, and a Treasurer. The corporation may also have, at the discretion of the Board of Directors, a Chairman of the Board, one or more additional Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions of Article IV, Section C of this Article. One person may hold two or more offices.

 

B. Election

 

The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Paragraph C of Article IV or Paragraph E of Article IV, shall be chosen annually by the Board of Directors, and each shall hold office until he or she shall resign or shall be removed or otherwise disqualified to serve, or a successor shall be elected and qualified.

 

C. Subordinate Officers

 

The Board of Directors may appoint such other officers or agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board of Directors may from time to time determine. The Board of Directors may delegate to any officer or committee the power to appoint any subordinate officers, committees, or agents, to specify their duties, and to determine their compensation.

 

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D. Removal and Resignation

 

Any officer may be removed, either with or without cause, by a majority of the Directors, at any regular or special meeting of the Board, or except in case of an officer chosen by the Board of Directors, by any committee or officer upon whom that power of removal may be conferred by the Board of Directors, provided, however, that the removal shall be without prejudice to the contract rights, if any, of the person removed. Any officer may resign at any time by giving written notice to the Board of Directors, the President, or the Secretary of the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified therein, and, unless otherwise specified therein, the acceptance of that resignation shall not be necessary to make it effective.

 

E. Vacancies

 

If the office of the President, Vice President, Secretary, Treasurer, Assistant Secretary (if any), or Assistant Treasurer (if any) becomes vacant by reason of death, resignation, removal or otherwise, the Board of Directors shall preside until a successor is elected.

 

F. Chairman of the Board

 

The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to the Chairman by the Board of Directors or prescribed by the Bylaws.

 

G. President

 

Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Within this authority and in the course of his duties the President shall be empowered as follows:

 

(1) To preside at all meetings of the shareholders and in the absence of the Chairman of the Board, or, if there is none, at all meetings of the Board of Directors,

 

15


 

and shall be ex officio a member of all the standing committees, including the executive committee, if any.

 

(2) To sign all certificates of shares of the corporation, in conjunction with the Secretary of assistant Secretary, unless otherwise ordered by the Board of Directors. The President’s signatures on the certificates may be facsimile if the certificates are countersigned by a transfer agent or registered by a registrar, neither of which is the corporation itself or any employee of the corporation.

 

(3) When authorized by the Board of Directors or required by law, to execute, in the name of the corporation deeds, conveyances, notices, leases, checks, drafts, bills of exchange, warrants, promissory notes, bonds, debentures, contracts, and other papers and instruments in writing, and, unless the Board of Directors shall order otherwise by resolution, make such contracts as the ordinary conduct of the corporation’s business may require.

 

(4) To appoint and remove, employ and discharge, and prescribe the duties and fix the compensation of all agents, employees, and clerks of the corporation other than the duly appointed officers, subject to the approval of the Board of Directors, and control, subject to the direction of the Board of Directors, all of the officers, agents, and employees of the corporation.

 

(5) Unless otherwise directed by the Board of Directors, to attend all meetings of the shareholders of any corporation in which this corporation holds stock, and act and vote on behalf of the corporation at those meetings. The President may attend in person or by substitute appointed by the President or Vice President and the Secretary and Assistant Secretary.

 

H. Vice President

 

In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws.

 

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I. Secretary

 

The Secretary shall be empowered as follows:

 

(1) To sign, with the President or Vice President, certificates for shares in the corporation. An Assistant Secretary may sign the certificates instead of the Secretary. The Secretary’s signature on the certificates may be facsimile if the certificates are countersigned by a transfer agent or registered by a registrar, neither of which is the corporation itself or any employee of the corporation.

 

(2) To attest and keep at the principal office of the corporation the original or a copy of these Bylaws as amended or otherwise altered to date.

 

(3) To keep the original or a copy of the Articles of Incorporation, certified by the Secretary of State, with all amendments thereof to date in the minute book.

 

(4) To keep at the principal office of the corporation or such other place as the Board of Directors may order, a book of minutes of all meetings of its Directors and shareholders, executive committee, and other committees. The minutes shall show the time and place of the meeting, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at director’s meetings, the number of shares or members present or represented at shareholders’ meetings, and the proceedings thereof.

 

(5) To see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law. In case of the absence of disability of the Secretary, or the Secretary’s refusal or neglect to act, notice may be given and served by an Assistant Secretary or by the President or Vice President or by the Board of Directors.

 

(6) To be custodian of the records and of the seal of the corporation and see that it is engraved, lithographed, printed, stamped, impressed upon, or affixed to all certificates for shares prior to their issuance and to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these Bylaws.

 

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(7) To sign or attest any documents as required by law or the business of the corporation and affix the corporate seal to instruments when necessary or proper.

 

(8) To keep at the principal office of the corporation a share register or duplicate share register showing the names of the shareholders and their addresses; the number, date of issue, and class of shares represented by each outstanding share certificate; and the number and date of cancellation of each certificate surrendered for cancellation.

 

(9) To see that the books, reports, statements, certificates, and all other documents and records required by law are properly kept and filed.

 

(10) To exhibit at all reasonable times to any Director, on written demand stating the purpose thereof of any person who has been a shareholder of record for at least six months immediately preceding the demand or who is the holder of record of at least five percent (5.0%) of all of the outstanding shares of the corporation, the bylaws, the share register, and minutes of proceedings of the shareholders and Directors of the corporation.

 

(11) In general, to perform all duties incident to the office of Secretary, and such other duties as from time to time may be assigned to him or her by the Board of Directors.

 

(12) In case of the absence or disability of the Secretary or the Secretary’s refusal or neglect to act, the Assistant Secretary, or if there be none, the Treasurer, acting as Assistant Secretary, may perform all of the functions of the Secretary. In the absence or inability to act, or refusal or neglect to act of the Secretary, Assistant Secretary, and Treasurer, any person thereunto authorized by the President or Vice President or by the Board of Directors may perform the functions of the Secretary.

 

J. Assistant Secretary

 

At the request of the Secretary, or in the Secretary’s absence or disability, the Assistant Secretary shall perform all the duties of the Secretary, and when so acting, the Assistant Secretary shall have all the powers of, and be subject to all the restrictions on, the Secretary. The Assistant Secretary shall perform such other duties as from time to time may be assigned to him or her by the Board of Directors or the Secretary.

 

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K. Treasurer

 

The Treasurer shall be empowered as follows:

 

(1) To have charge and custody of, and be responsible for, all funds and securities of the corporation, and deposit all funds in the name of the corporation in those banks, trust companies, or other depositaries that shall be selected by the Board of Directors.

 

(2) To receive, and give receipt for, moneys due and payable to the corporation from any source whatever.

 

(3) To disburse or cause to be disbursed the funds of the corporation as may be directed by the Board of Directors, taking proper vouchers for those disbursements.

 

(4) To keep and maintain adequate and correct accounts of the corporation’s properties and business transactions including account of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus, and shares. Any surplus, including earned surplus, paid-in surplus, and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account.

 

(5) To exhibit at all reasonable times the books of account and records to any Director on application, or to any person who has been a shareholder of record for at least six (6) months immediately preceding his demand or who is the holder of record of at least five percent (5.0%) of all the outstanding shares of the corporation, on written demand stating the purpose thereof, during business hours at the office of the corporation where such books and records are kept.

 

(6) To render to the President and Directors, whenever they request it, an account of all his or her transactions as Treasurer and of the financial condition of the corporation.

 

(7) To prepare, or cause to be prepared, and certify the financial statements to be included in the annual report to shareholders and statements of the affairs of the corporation when requested by shareholders holding at least 10 percent of the number of outstanding shares of the corporation.

 

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(8) If required by the Board of Directors or the President, to give to the corporation a bond to assure the faithful performance of the duties of the Treasurer’s office and the restoration to the corporation of all corporate books, papers, vouchers, money, and the property of whatever kind in the Treasurer’s possession or control, in case of the Treasurer’s death, resignation, retirement or removal from office. Such a bond must be in the sum satisfactory to the Board of Directors with one or more sureties or a surety company satisfactory to the Board of Directors.

 

(9) In general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to the Treasurer by the Board of Directors.

 

(10) In case of the absence or disability of the Treasurer or the Treasurer’s refusal or neglect to act, the Assistant Treasurer or the Secretary acting as Assistant Treasurer may perform all of the functions of the Treasurer. In the absence or inability to act, or refusal or neglect to act, of the Treasurer, the Assistant Treasurer, and the Secretary, any person thereunto authorized by the President or Vice President or by the Board of Directors may perform the functions of the Treasurer.

 

L. Assistant Treasurer

 

The Assistant Treasurer, if required to do so by the Board of Directors, shall give bond for the faithful discharge of the duties of the Assistant Treasurer, in such sum, and with such sureties as the Board of Directors shall require. At the request of the Treasurer, or in the Treasurer’s absence or disability, the Assistant Treasurer designated as set forth in precedent Article IV, Section K(10) of these Bylaws shall perform all the duties of the Treasurer, and when so acting, shall have all the powers of, and be subject to all the restrictions on, the Treasurer. The Assistant Treasurer shall perform such other duties as from time to time may be assigned to him or her by the Board of Directors or the Treasurer.

 

M. Salaries

 

The salaries of the officers shall be fixed from time to time by the Board of Directors, and no officer shall be prevented from receiving a salary by reason of the fact that the officer is also a Director of the corporation.

 

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ARTICLE V.

 

EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

A. Authority for Execution of Instruments

 

The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and that authority my be general or confined to specific instances, and, unless so authorized, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.

 

B. Execution of Instruments

 

Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, other corporate instruments or documents, and certificates of shares of stock owned by the corporation shall be executed, signed, or endorsed by the President or any Vice President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal affixed thereto.

 

C. Bank Accounts and Deposits

 

(1) All funds of the corporation shall be deposited from time to time to the credit of the corporation with such banks, trust companies, or other depositaries as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the corporation to whom that power may be delegated from time to time by the Board of Directors.

 

(2) Endorsements for deposit to the credit of the corporation in any of its duly authorized depositaries may be made without countersignatures by the President or any Vice President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the corporation to whom the Board of Directors, by resolution, shall have delegated that power, or by hand stamped impression in the name of the corporation.

 

(3) All checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation,

 

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shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors.

 

ARTICLE VI.

 

ISSUANCE AND TRANSFER OF SHARES

 

A. Classes and Series of Shares

 

The corporation may issue one or more classes or series of shares, or both, any of which classes or series may be with par value or without par value and with full, limited, or no voting rights, and with such other preferences, rights, privileges, and restrictions as are stated or authorized in the Articles of Incorporation. All shares of any one class shall have the same voting rights, conversion, redemption, and other rights, preferences, privileges, and restrictions, unless the class is divided into series. If a class is divided into series, all the shares of any one series shall have the same voting rights, conversion, redemption, and other rights, preferences, privileges, and restrictions. There shall always be a class or series of shares outstanding that has complete voting rights except as limited or restricted by voting rights conferred on some other class or series of outstanding shares.

 

B. Certificates for Fully Paid Shares

 

Neither shares not certificates representing shares may be issued by the corporation until the full amount of the consideration has been paid. When the consideration has been paid to the corporation, the shares shall be deemed to have been issued and the certificate representing the shares shall be issued to the shareholder.

 

C. Consideration for Shares

 

The consideration paid for the issuance of shares shall consist of money paid, labor done, or property actually received, and neither promissory notes, nor the promise of future services shall constitute payment or part payment for shares of the corporation.

 

D. Compliance with Corporate Securities Law

 

The corporation shall not sell or offer to sell any security issued by it, whether or not through underwriters, until that offer or sale has been qualified by the Florida Securities Commissioner as required by the Florida Securities Act and the rules and regulations of the Commissioner, unless the security or

 

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transaction is exempted from qualification and the applicable statutes and rules and regulations have been complied with.

 

E. Signing Certificates—Facsimile Signatures

 

All share certificates shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary. The signatures of the President or Vice President, Secretary or Assistant Secretary may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar either of which is not the corporation itself or an employee of the corporation. If the officer who has signed or whose facsimile signature has been placed on the certificate has ceased to be such officer before the certificate is issued, the certificate may be issued by the corporation with the same effects as if he or she were such officer on the date of its issuance.

 

F. Options—Authority to Adopt

 

(1) The corporation may, if so determined by the Board, and subject to any restrictions or limitations in the Articles of Incorporation, grant options to purchase shares of any class or series on such terms and conditions as the Board may deem expedient. Options may be issued in connection with the issue, subscription, or sale of any of its shares, bonds, debentures, notes, or other securities, or independently thereof. Option rights may be transferable or nontransferable and separable or inseparable from other securities of the corporation, as determined by the Board.

 

(2) The option must set forth the terms on which, the time or times within which, and price or prices at which the option shares may be purchased from the corporation on exercise of the option.

 

G. Lost or Destroyed Shares

 

(1) When a share certificate has been lost, apparently destroyed, or wrongfully taken and the owner fails to notify the corporation of that fact within a reasonable time after noticing it, and the corporation registers a transfer of the share represented by the certificate before receiving such a notification, the owner is precluded from asserting against the corporation any claim for registering the transfer or any claim to a new certificate.

 

(2) When the holder of a share certificate claims that the certificate has been lost, destroyed, or wrongfully taken, the corporation shall issue a new

 

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certificate in place of the original certificate if the owner (a) requests a new certificate before the corporation has notice that the share has been acquired by a bona fide purchaser, (b) files with the corporation a sufficient indemnity bond, and (c) satisfies any other reasonable requirements imposed by the Board of Directors.

 

(3) If, after the issue of a new certificate as a replacement for a lost, destroyed, or wrongfully taken certificate, a bona fide purchaser of the original certificate presents it for registration of transfer, the corporation must register the transfer unless registration would result in overissue. If the registration of transfer would result in overissue, the corporation shall, on request of the bona fide purchaser, purchase and deliver an identical security to that purchaser against surrender of the certificate, if an identical security is reasonably available. If an identical security is not reasonably available, the corporation must, on request of the bona fide purchaser, pay to that purchaser the price paid for the security, with interest from the date of demand. In addition to any rights on the indemnity bond, the corporation may recover the new security from the person to whom it was issued or any person taken under him except a bona fide purchaser.

 

H. Transfer Agents and Registrars

 

The Board of Directors may appoint one or more transfer agents or transfer clerks, and one or more registrars, at such times and place as the requirements of the corporation may necessitate and the Board of Directors may designate. The registrar shall be an incorporated bank or trust company, either domestic or foreign.

 

I. Conditions of Transfer

 

A person in whose name shares of stock stand on the books of the corporation shall be deemed the owner thereof as regards the corporation, provided that whenever any transfer of shares shall be made for collateral security, and not absolutely, and written notice thereof shall be given to the Secretary of the corporation or its transfer agent, if any, such fact shall be stated in the entry of the transfer.

 

J. Reasonable Doubts as to Right to Transfer

 

When a transfer of shares is requested and there is reasonable doubt as to the right of the person seeking the

 

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transfer, the corporation or its transfer agent, before recording the transfer of the shares on its books or issuing any certificate therefor, may require from the person seeking the transfer reasonable proof of that person’s right to the transfer. If there remains a reasonable doubt of the right to the transfer, the corporation may refuse a transfer unless the person gives adequate security or a bond of indemnity executed by a corporate surety or by two individual sureties satisfactory to the corporation as to form, amount, and responsibility of sureties. The board shall be conditioned to protect the corporation, its officers, transfer agents, and registrars, or any of them, against any loss, damage, expense, or other liability to the owner of the shares by reason of the recordation of the transfer or the issuance of a new certificate for shares.

 

ARTICLE VII.

 

CORPORATE RECORDS, REPORTS, AND SEAL

 

A. Minutes of Corporate Meetings

 

The corporation shall keep at the office of the attorney for the corporation, or such other place as the Board of Directors may order, a book of minutes of all meetings of its Directors and of its shareholders or members, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares or members present or represented at shareholders or members’ meetings, and the proceedings thereof.

 

B. Books of Account

 

The corporation shall keep and maintain adequate and correct accounts of its properties and business transactions, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus, and shares. Any surplus including earned surplus, paid-in surplus, and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account.

 

C. Share Register

 

The corporation for profit shall keep at the office of the attorney for the corporation, or at the office of the transfer agent, a share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for shares, and the number and date of cancellation of every certificate surrendered for cancellation. The above specified information may be kept by the corporation on an information storage device such as electronic data processing equipment provided that the equipment is capable of

 

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reproducing the information in clearly legible form for the purposes of inspection as provided in Section D, Article VII of these Bylaws.

 

D. Inspection of Records by Shareholders

 

(1) Any person who shall have been a shareholder of record for at least six (6) months immediately proceeding that person’s demand to inspect the corporate records, or who is the holder of record of at least five percent (5.0%) of all of the outstanding shares of the corporation, on written demand stating the purpose thereof, has the right to examine, in person, or by agent, accountant, or attorney, at any reasonable time or times, for any proper purpose, its books and records of account, minutes, and record of shareholders, and is entitled to make extracts therefrom.

 

(2) Every Director shall have the absolute right at any reasonable time to inspect all books, records, documents and every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such inspection by a Director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts.

 

E. Fiscal Year

 

The fiscal year of the corporation shall be as determined by the Board of Directors.

 

F. Corporate Seal

 

The Board of Directors may adopt, use, and thereafter alter the corporate seal.

 

ARTICLE VIII.

 

AMENDMENT OF BYLAWS

 

A. Adoption, Amendment, Repeal of Bylaws of Directors

 

Bylaws may be altered, amended, or repealed, and new bylaws may be adopted, by the Directors, subject to repeal or change by action of the shareholders.

 

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 EX-3.142(A) 284 a2202241zex-3_142a.htm EX-3.142(A)

Exhibit 3.142(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

THE 191 CLUB, INC.

 

Pursuant to Section 14-2-1007 of the Georgia Business Corporation Code, these Amended and Restated Articles of Incorporation amend and restate the existing Amended and Restated Articles of Incorporation filed on February 21, 2007, as set forth herein.

 

FIRST.  The name of the corporation is The 191 Club, Inc. (the “Corporation”).

 

SECOND.  [Reserved.]

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Atlanta, State of Georgia, including the sports or business club commonly known as One Ninety One Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Georgia Business Corporation Code.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved.]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 


 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the State of Georgia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.  The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved.]

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Georgia Business Corporation Code as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Georgia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved.]

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment

 

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for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  To the extent allowed by law, any action that is required to be or may be taken at a meeting of the shareholders of the Corporation may be taken without a meeting if written consent, setting forth the action, shall be signed by persons who would be entitled to vote at a meeting those shares having voting power to cast not less than the minimum number (or numbers, in the case of voting by classes) of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted.  Notice shall be given within ten (10) days of the taking of corporate action without a meeting by less than unanimous written consent to those shareholders on the record date whose shares were not represented on the written consent.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consent dated November 9, 2010, and pursuant to Section 14-2-1003 of the Georgia Business Corporation Code.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

[The remainder of this page is intentionally blank.]

 

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OFFICER’S CERTIFICATE

 

In accordance with Section 14-2-1007 of the Georgia Business Corporation Code, the undersigned, as the duly elected Secretary of The 191 Club, Inc. (the “Corporation”), hereby submits these Amended and Restated Articles of Incorporation of the Corporation for filing with the Secretary of State of the State of Georgia for purposes of amending the Amended and Restated Articles of Incorporation filed on February 21, 2007, in the form of the Amended and Restated Articles of Incorporation as attached hereto.

 

The Amended and Restated Articles of Incorporation contain an amendment that requires shareholder approval.

 

The Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010.

 

The Amended and Restated Articles of Incorporation were approved by the shareholders of the Corporation on November 9, 2010 in accordance with the provisions of Section 14-2-1003 of the Georgia Business Corporation Code.

 

Dated:  November 10th, 2010.

 

 

THE 191 CLUB, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 EX-3.142(B) 285 a2202241zex-3_142b.htm EX-3.142(B)

Exhibit 3.142(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

THE 191 CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of Shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Georgia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of Shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of Shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever Shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of Shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of Shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares

 


 

of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the Shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of Shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of Shareholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of Shareholders or to express consent to corporate action in writing without a meeting may appoint a proxy to vote or otherwise act for the stockholder by signing an appointment form or by an electronic transmission, but no such proxy shall be voted or acted upon after 11 months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of Shareholders need not be by written ballot. At all meetings of Shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the Shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the Shareholders entitled to notice of or to vote at

 

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any meeting of Shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of Shareholders entitled to vote at any meeting of Shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of Shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining Shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining Shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of Shareholders of record entitled to notice of or to vote at a meeting of Shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of Shareholders, a complete list of the Shareholders entitled to vote at the meeting, arranged in alphabetical order, arranged by voting group (and within each voting group by class or series of stock) and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of Shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the Shareholders entitled to examine the list of Shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of Shareholders.

 

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Section 1.10.   Action By Written Consent of Shareholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Georgia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of Shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Not more than 10 days after the taking of such action without a meeting, notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those Shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of Shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of Shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of Shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the Shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of Shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of Shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of Shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of Shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be Shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the Shareholders thereafter, the Shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of Shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Georgia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Georgia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing describing the action taken and signed by each director, or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the

 

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corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law or under O.C.G.A. § 14-2-825, and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of Shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

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Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the reasonable expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon a written affirmation of his/her good faith belief that he or she has met the relevant standard of conduct described in O.C.G.A. § 14-2-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by O.C.G.A. § 14-2-202, and upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this

 

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Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of Shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and Shareholders shall be in writing and delivered personally or mailed to the directors or Shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

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Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the Shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the Shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.143(A) 286 a2202241zex-3_143a.htm EX-3.143(A)

Exhibit 3.143(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

THE BUCKHEAD CLUB, INC.

 

Pursuant to Section 14-2-1007 of the Georgia Business Corporation Code, these Amended and Restated Articles of Incorporation amend and restate the existing Amended and Restated Articles of Incorporation filed on February 21, 2007, as set forth herein.

 

FIRST. The name of the corporation is The Buckhead Club, Inc. (the “Corporation”).

 

SECOND. [Reserved.]

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Atlanta, State of Georgia, including the sports or business club commonly known as Buckhead Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Georgia Business Corporation Code.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. [Reserved.]

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 


 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in the manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Georgia, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. [Reserved.]

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Georgia Business Corporation Code as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Georgia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. [Reserved.]

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment

 

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for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH. To the extent allowed by law, any action that is required to be or may be taken at a meeting of the shareholders of the Corporation may be taken without a meeting if written consent, setting forth the action, shall be signed by persons who would be entitled to vote at a meeting those shares having voting power to cast not less than the minimum number (or numbers, in the case of voting by classes) of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted. Notice shall be given within ten (10) days of the taking of corporate action without a meeting by less than unanimous written consent to those shareholders on the record date whose shares were not represented on the written consent.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consent dated November 9, 2010, and pursuant to Section 14-2-1003 of the Georgia Business Corporation Code. These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

[The remainder of this page is intentionally blank.]

 

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OFFICER’S CERTIFICATE

 

In accordance with Section 14-2-1007 of the Georgia Business Corporation Code, the undersigned, as the duly elected Secretary of The Buckhead Club, Inc. (the “Corporation”), hereby submits these Amended and Restated Articles of Incorporation of the Corporation for filing with the Secretary of State of the State of Georgia for purposes of amending the Articles of Incorporation filed on February 21, 2007, in the form of the Amended and Restated Articles of Incorporation as attached hereto.

 

The Amended and Restated Articles of Incorporation contain an amendment that requires shareholder approval.

 

The Amended and Restated Articles of Incorporation were adopted by the Board of Directors on November 9, 2010.

 

The Amended and Restated Articles of Incorporation were approved by the shareholders of the Corporation on November 9, 2010 in accordance with the provisions of Section 14-2-1003 of the Georgia Business Corporation Code.

 

Dated: November 10th, 2010.

 

 

THE BUCKHEAD CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 EX-3.143(B) 287 a2202241zex-3_143b.htm EX-3.143(B)

Exhibit 3.143(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

THE BUCKHEAD CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of Shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Georgia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of Shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of Shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever Shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of Shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of Shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares

 


 

of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the Shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of Shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of Shareholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of Shareholders or to express consent to corporate action in writing without a meeting may appoint a proxy to vote or otherwise act for the stockholder by signing an appointment form or by an electronic transmission, but no such proxy shall be voted or acted upon after 11 months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of Shareholders need not be by written ballot. At all meetings of Shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the Shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the Shareholders entitled to notice of or to vote at

 

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any meeting of Shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of Shareholders entitled to vote at any meeting of Shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of Shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining Shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining Shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of Shareholders of record entitled to notice of or to vote at a meeting of Shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of Shareholders, a complete list of the Shareholders entitled to vote at the meeting, arranged in alphabetical order, arranged by voting group (and within each voting group by class or series of stock) and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of Shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the Shareholders entitled to examine the list of Shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of Shareholders.

 

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Section 1.10. Action By Written Consent of Shareholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Georgia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of Shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Not more than 10 days after the taking of such action without a meeting, notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those Shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of Shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of Shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of Shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the Shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of Shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of Shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of Shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of Shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be Shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the Shareholders thereafter, the Shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of Shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Georgia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Georgia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing describing the action taken and signed by each director, or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the

 

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corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law or under O.C.G.A. § 14-2-825, and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of Shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

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Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person, except as otherwise provided in O.C.G.A. § 14-2-851. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the reasonable expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon a written affirmation of his/her good faith belief that he or she has met the relevant standard of conduct described in O.C.G.A. § 14-2-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by O.C.G.A. § 14-2-202, and upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this

 

9


 

Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of Shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and Shareholders shall be in writing and delivered personally or mailed to the directors or Shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

10


 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the Shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the Shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

11


 EX-3.144(A) 288 a2202241zex-3_144a.htm EX-3.144(A)

Exhibit 3.144(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
THE CLUB AT CIMARRON, INC.

 

The Club at Cimarron, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is The Club at Cimarron, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1. The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF THE CLUB AT CIMARRON, INC.”

 

2. The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is The Club at Cimarron, Inc. The Corporation is a for-profit corporation.

 

3. The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Club at Cimarron, in the City of Mission, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4. The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5. The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

6. The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7. The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8. The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9. The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

3


 

ARTICLE XIV

 

Reserved.

 

10. The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11. The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of The Club at Cimarron, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

THE CLUB AT CIMARRON, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
THE CLUB AT CIMARRON, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is The Club at Cimarron, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Club at Cimarron, in the City of Mission, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

2


 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.144(B) 289 a2202241zex-3_144b.htm EX-3.144(B)

Exhibit 3.144(b)

 

AMENDED AND RESTATED BYLAWS
OF
THE CLUB AT CIMARRON, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.145(A) 290 a2202241zex-3_145a.htm EX-3.145(A)

Exhibit 3.145(a)

 

 

RECEIVED
SECRETARY OF STATE
2010 NOV 12 PM 3:50
[Illegible] SERVICE CENTER

 

 

Prescribed by J. Kenneth Blackwell

Expedite this Form: (Select One)

[Seal of Ohio Secretary of State]

Ohio Secretary of State
Central Ohio: (614) 466-3910
Toll Free: 1-877-SOS-FILE (1-877-767-3453)

 

Mail Form to one of the Following:

 

o Yes

PO Box 1390
Columbus, OH 43216

www.state.oh.us/sos

*** Requires an additional fee of $100***

e-mail: busserv@sos.state.oh.us

o No

PO Box1028
Columbus, OH 43216

 

Certificate of Amendment by
Shareholders or Members
(Domestic)
Filing Fee $50.00

 

(CHECK ONLY ONE (1) BOX)

 

(1) Domestic for Profit

 

PLEASE READ INSTRUCTIONS

 

(2) Domestic Non-Profit

 

 

  x     Amended
(122-AMAP)

 

  o     Amendment
(125-AMDS)

 

  o     Amended
(126-AMAN)

 

  o     Amendment
(128-AMD)

 

Complete the general information in this section for the box checked above.

 

Name of Corporation

The Club at Society Center, Inc.

 

 

Charter Number

761299

 

 

Name of Officer

Ingrid Keiser

 

 

Title

Secretary

 

x Please check if additional provisions attached.

 

The above named Ohio corporation, does hereby certify that:

 

o A meeting of the

o shareholders

o directors (non-profit amended articles only)

 

o members was duly called and held on

 

 

 

 

 

(Date)

 

 

at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative vote was cast which entitled them to exercise              % as the voting power of the corporation.

 

x In a writing signed by all of the

x shareholders

o directors (non-profit amended articles only)

o members who would be entitled to the notice of a meeting or such other proportion not less than a majority as the articles of regulations or bylaws permit.

 

Clause applies if amended box is checked.

 

Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede and take the place of the existing articles of incorporation and all amendments thereto.

 

1


 

All of the following information must be completed if an amended box is checked. If an amendment box IS checked complete the areas that apply.

 

 

FIRST:

The name of the corporation is:

 The Club at Society Center, Inc.

 

 

SECOND:

The place in the State of Ohio where its principal office is located is in the City of:

 

 

 

Cleveland

 

Cuyahoga

 

 

(city, village or township)

 

(county)

 

 

 

THIRD:

The purposes of the corporation are as follows:

 

 

 

See Exhibit A attached.

 

 

FOURTH:

The number of shares which the corporation is authorized to have outstanding is:

1,000 Common

 

(Does not apply to box (2))

$1.00 par value per share

 

REQUIRED

Must be authenticated
(signed) by an authorized
representative

(See Instructions)

 

/s/ Ingrid Keiser

 

November 10, 2010

Authorized Representative

 

Date

 

 

Ingrid Keiser

 

(Print Name)

 

 

 

 

Secretary

 

 

 

 

 

 

 

 

 

 

Authorized Representative

 

Date

 

 

 

 

 

 

 

 

(Print Name)

 

 

 

 

 

 

 

 

 

 

 

 

2


 

EXHIBIT A

TO

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

THE CLUB AT SOCIETY CENTER, INC.

 

THIRD. The Club at Society Center, Inc. (the “Corporation”) has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Cleveland, State of Ohio, including the sports or business club commonly known as Club at Key Center (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the General Corporation Law of the State of Ohio.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SIXTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

1


 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation,

 

SEVENTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Ohio, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

EIGHTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

NINTH. The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

TENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Ohio, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ELEVENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Ohio at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

TWELFTH. Reserved.

 

THIRTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency

 

2


 

proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action: or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors of the Corporation and the sole shareholder of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 1701.71 of Ohio General Corporation Law. These Amended and Restated Articles of Incorporation supersede the Corporation’s existing Articles of Incorporation and all amendments to them.

 

3


 

IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

THE CLUB AT SOCIETY CENTER, INC.

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 


 EX-3.145(B) 291 a2202241zex-3_145b.htm EX-3.145(B)

Exhibit 3.145(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

THE CLUB AT SOCIETY CENTER, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.    Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Ohio, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.    Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.    Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.    Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5.    Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.    Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.    Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.    Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.    List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10.    Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Ohio, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.    Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.    Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.    Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.    Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.    Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Ohio and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.    Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Ohio whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.    Telephonic Meetings, Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.    Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.    Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.    Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.    Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.    Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.    Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.    Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.    Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.    Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.    Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.    Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.    Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.    Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.    Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.    Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.    Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.    Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.    Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.    Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.    Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.    Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.    Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.146(A) 292 a2202241zex-3_146a.htm EX-3.146(A)

Exhibit 3.146(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

THE COMMERCE CLUB, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed with the Secretary of State of the State of South Carolina on February 28, 1983 pursuant to Section 33-10-107 of the South Carolina Business Corporation Act of 1988, hereby execute this Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST. The name of the corporation is The Commerce Club, Inc. (the “Corporation”).

 

SECOND. The address of the Corporation’s registered office in the State of South Carolina is 5000 Thurmond Mall Boulevard, Columbia, 29201. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Greenville, State of South Carolina, including the sports or business clubs commonly known as Commerce Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the South Carolina Business Corporation Act of 1988.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

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FIFTH. [Reserved.]

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. Directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Shareholders do not have a right to cumulate their votes for directors.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by, the Corporation’s Board of Directors or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of South Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. [Reserved.]

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the South Carolina Business Corporation Act of 1988 as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of South Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. [Reserved.]

 

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FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.

 

* * *

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation. Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1. On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2. The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3. The amendments were adopted by the shareholders. On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock. The number cast for the amendment was sufficient for approval by that voting group.

 

Dated: November 10, 2010   .

THE COMMERCE CLUB, INC.

 

 

 

By

/s/ Ingrid Keiser

 

Name:  Ingrid Keiser

 

Its:  Secretary

 

5


 EX-3.146(B) 293 a2202241zex-3_146b.htm EX-3.146(B)

Exhibit 3.146(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

THE COMMERCE CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of South Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by (i) the Board of Directors; or (ii) by the shareholders constituting at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the special meeting provided that such shareholders sign, date, and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose for which it is to be held. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a

 


 

new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a

 

2


 

majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, in the timeframe set forth below, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting on the date on which notice of the meeting is given (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only

 

3


 

evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Unanimous Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to nonvoting shareholders, the corporation shall give the nonvoting shareholders written notice of the proposed action at least ten (10) days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent

 

4


 

with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized, and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

5


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of South Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of South Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least two (2) days before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

6


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors; or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. A person entitled to notice of a meeting may waive any notice required by applicable law, the articles of incorporation, or these by-laws before or after the date and time stated in the notice of the meeting if a written waiver signed by the person entitled to the notice of the meeting is delivered to the corporation for filing in the minutes or corporate records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.147(A) 294 a2202241zex-3_147a.htm EX-3.147(A)

Exhibit 3.147(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
THE DOWNTOWN CLUB, INC.

 

The Downtown Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is The Downtown Club, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.                         The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF THE DOWNTOWN CLUB, INC.”

 

2.                         The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is The Downtown Club, Inc. The Corporation is a for-profit corporation.

 

3.                         The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business clubs commonly known as The Houston Center Club at Downtown, The Plaza Club at Downtown, The Met Business and Sports Club at Downtown (collectively, the “Business”);

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                         The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                         The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

6.                         The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                         The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                         The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                         The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

3


 

10.                   The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                   The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of The Downtown Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

THE DOWNTOWN CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
THE DOWNTOWN CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is The Downtown Club, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business clubs commonly known as The Houston Center Club at Downtown, The Plaza Club at Downtown, The Met Business and Sports Club at Downtown (collectively, the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

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 EX-3.147(B) 295 a2202241zex-3_147b.htm EX-3.147(B)

Exhibit 3.147(b)

 

AMENDED AND RESTATED BYLAWS
OF
THE DOWNTOWN CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.148(A) 296 a2202241zex-3_148a.htm EX-3.148(A)

Exhibit 3.148(a)

 

CERTIFIED TO BE A TRUE AND CORRECT COPY
AS TAKEN FROM ANC COMPARED WITH THE
[ILLEGIBLE]

OCT 12 2010

 

Jim Miles
SECRETARY OF STATE
FILED

NOV 18 1994

 

 

AM

PM

/s/ Mark Hammond

 

7 8 9 10 11 12 1 2 3 4 5 6

SECRETARY OF STATE OF SOUTH CAROLINA

 

 

 

ARTICLES OF INCORPORATION

 

OF

 

THE MANAGER OF THE OWNER’S CLUB INC.

 

ARTICLE ONE

 

The name of the corporation is The Manager of the Owner’s Club, Inc.

 

ARTICLE TWO

 

The initial registered office of the corporation is 75 Beattie Place, Two Shelter Centre, Greenville, County of Greenville, South Carolina 29601, and the name of its initial registered agent at such address is C T Corporation System.

 

ARTICLE THREE

 

The period of duration shall be perpetual.

 

ARTICLE FOUR

 

The corporation is authorized to issue one thousand (1,000) common shares of stock with a par value of One Dollar ($1.00).

 

ARTICLE FIVE

 

The total authorized capital stock shall be One Thousand Dollars ($1,000.00).

 

ARTICLE SIX

 

The existence of the corporation shall begin as of the filing date with the Secretary of State.

 

ARTICLE SEVEN

 

The number of directors constituting the initial board of directors is two (2), and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors be elected and qualify are:

 

1


 

Murry E. Page

15770 Dallas Parkway,
5th Floor
Dallas, Texas 75248

 

 

Randolph D. Addison

15770 Dallas Parkway,
5th Floor
Dallas, Texas 75248

 

ARTICLE EIGHT

 

The general nature of the business for which the corporation is organized is to engage in the businesses of establishing, developing, building, designing, constructing, maintaining, managing, operating, buying, selling, acquiring, leasing, trading, and dealing in one or more private clubs and/or restaurants for the providing of refreshments, entertainment, exercise, health, and athletic facilities and social diversions for their members and guests and to afford all customary privileges and accommodations of a private club for profit, and to engage in such other related activities and make such other investments as the Board of Directors of the corporation may from time to time deem advisable, both within and without the State of South Carolina, and to do all things incidental thereto or connected therewith which are necessary, proper, advisable, or convenient in the premises and are not forbidden by law, and to transact any and all lawful business for which corporations may be incorporated under the South Carolina Business Corporation Act.

 

ARTICLE NINE

 

The name and address of the incorporator is Linda Blanton-Myers, 15770 Dallas Parkway, 5th Floor, Dallas, Dallas County, Texas 75248.

 

Dated this 15th day of November, 1994.

 

 

 

 

 

/s/ Linda Blanton-Myers

 

 

 

Linda Blanton-Myers
Incorporator

 

2


 

CERTIFICATE OF ATTORNEY

 

I, Jonathan Harvey, an attorney licensed to practice in the State or South Carolina, certify that the corporation, to whose Articles of Incorporation this Certificate is attached, has complied with the requirements of Chapter 7 of Title 33 of the 1976 South Carolina Code, relating to the organization of corporations, and that in my opinion the corporation is organized for a lawful purpose.

 

Dated this 15 day of November, 1994.

 

 

 

 

 

/s/ Jonathan Harvey

 

 

 

(Signature)

 

 

 

 

 

 

 

Jonathan Harvey

 

 

 

(Typed or Printed Name)

 

 

 

 

 

 

 

1804 Bull Street
Columbia, South Carolina 29201

 

3


 

CERTIFIED TO BE A TRUE AND CORRECT COPY
AS TAKEN FROM ANC COMPARED WITH THE
[ILLEGIBLE]

OCT 12 2010

 

Jim Miles
SECRETARY OF STATE
FILED

AUG 19 1996

 

 

AM

PM

/s/ Mark Hammond

 

7 8 9 10 11 12 1 2 3 4 5 6

SECRETARY OF STATE OF SOUTH CAROLINA

 

 

 

STATE OF SOUTH CAROLINA
SECRETARY OF STATE

 

NOTICE OF CHANGE OF REGISTERED OFFICE
OR REGISTERED AGENT OR BOTH
OF A SOUTH CAROLINA
OR FOREIGN CORPORATION

 

Pursuant to §§33-5-102 and 33-15-108 of the 1976 South Carolina Code, as amended, the under-signed corporation submits the following information.

 

1.

The name of the corporation is THE MANAGER OF THE OWNER’S CLUB, INC.

 

 

2.

The corporation is (complete either a or b, whichever is applicable):

 

 

 

a. a domestic corporation incorporated in South Carolina on 11-18-94; or

 

b. a foreign corporation incorporated in

 

on

 

, and

 

 

(State)

 

(Date)

 

 

 

authorized to do business in South Carolina on

 

.

 

 

(Date)

 

 

3.

The street address of the current registered office in South Carolina is

75 BEATTIE PLACE

 

 

(Street & Number)

 

 

in the city of GREENVILLE, South Carolina

29601

.

 

 

(Zip Code)

 

 

 

 

4.

If the current registered office is to be changed, the street address to which its registered office is to be changed is

 

2019 Park Street

 in the city of Columbia South Carolina

29201

 

 

(Street & Number)

 

(Zip Code)

 

 

5.

The name of the present registered agent is CT CORPORATION SYSTEM.

 

 

6.

If the current registered agent is to be changed, the name of the successor registered agent is Corporation Service Company.

 

*I hereby consent to the appointment as registered agent of the corporation:

 

 

 

Corporation Service Company

 

 

 

 

 

 

By:

/s/ Patricia Pizzuto

 

 

 

(signature of New Registered Agent)

 

 

 

 

Patricia Pizzuto, Asst. Secretary

 

 

7.

The address of the registered office and the address of the business office of the registered agent, as changed, will be identical.

 

 

8.

Unless a delayed date is specified, this application will be effective upon acceptance for filing by the Secretary of State (See §33-1-230(b)):                                            .

 

*

Pursuant to §§33-9-102(5) and 33-19-108(5), the written consent of the registered agent may be attached to this form.

 


 

 

9.

Dated this 12 day of AUGUST, 1996.

 

 

 

 

THE MANAGER OF THE OWNER’S CLUB, INC.

 

 

(Name of Corporation)

 

 

 

 

 

 

 

By:

/s/ Terry A. Taylor

 

 

 

 

 

 

 

 

TERRY A. TAYLOR, SECRETARY

 

 

(Type or Print Name and Title)

 

 

FILING INSTRUCTIONS

 

1.                          Two copies of this form, the original and either a duplicate original or a conformed copy, must be filed.

 

2.                          Filing Fee (payable to the Secretary of State at the time of filing this document) – $10.00

 

3.                          Pursuant to §33-5-102(b). the registered agent can file this form when the only change is changing the street address of the registered office. In this situation, the following statement should be typed on the form above the registered agent’s signature: “The corporation has been notified of this change.”

 

 

Form Approved by South Carolina
Secretary of State 1/89

 


 EX-3.148(B) 297 a2202241zex-3_148b.htm EX-3.148(B)

Exhibit 3.148(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

THE MANAGER OF THE OWNER’S CLUB, INC.

 

Adopted November 3, 2010

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of South Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by (i) the Board of Directors; or (ii) by the shareholders constituting at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the special meeting provided that such shareholders sign, date, and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose for which it is to be held. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other

 


 

distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, in the timeframe set forth below, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting on the date on which notice of the meeting is given (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Unanimous Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to nonvoting shareholders, the corporation shall give the nonvoting

 


 

shareholders written notice of the proposed action at least ten (10) days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and

 


 

declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 


 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of South Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of South Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least two (2) days before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their

 


 

absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 


 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 


 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 


 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 


 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint

 


 

venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. A person entitled to notice of a meeting may waive any notice required by applicable law, the articles of incorporation, or these by-laws before or after the date and time stated in the notice of the meeting if a written waiver signed by the person entitled to the notice of the meeting is delivered to the corporation for filing in the minutes or corporate records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 


 EX-3.149(A) 298 a2202241zex-3_149a.htm EX-3.149(A)

Exhibit 3.149(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

THE METROPOLITAN CLUB OF CHICAGO, INC.

 

I, Ingrid Keiser, being the Secretary of The Metropolitan Club of Chicago, Inc., a corporation formed under the laws of Illinois on December 22, 1972, under the name Mid-Tower Club, Inc., subsequently changed to Metropolitan Club of Chicago, Inc. pursuant to Articles of Amendment duly filed on January 16, 1973, and further changed to The Metropolitan Club of Chicago, Inc. pursuant to Articles of Amendment duly filed on February 22, 1973, for the purposes of amending and restating the Articles of Incorporation originally filed with the Secretary of State of the State of Illinois on December 22, 1972, as amended, pursuant to Section 10.05 of the Illinois Business Corporation Act of 1983 hereby executes these Amended and Restated Articles of Incorporation:

 

FIRST. The name of the corporation is The Metropolitan Club of Chicago, Inc. (the “Corporation”).

 

SECOND. The address of the Corporation’s registered office in the State of Illinois is 801 Adlai Stevenson Drive, in the City of Springfield, County of Sangamon, 62703. The name of its registered agent at such address is Illinois Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Chicago, State of Illinois, including the sports or business clubs commonly known as Metropolitan Club — Chicago and Plaza Club - Chicago (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents

 


 

necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Illinois Business Corporation Act of 1983.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. The number of shares issued on the date of filing these Amended and Restated Articles of Incorporation is 1,000 common shares, and the amount of paid-in capital on such date is $193,518.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Illinois, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business Corporation Act of 1983 of the State of Illinois as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder

 

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in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Illinois at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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The undersigned officer hereby acknowledges that the foregoing Amended and Restated Articles of Incorporation are his act and deed on this the 10th day of November, 2010.

 

 

 

THE METROPOLITAN CLUB OF
CHICAGO, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — The Metropolitan Club of Chicago, Inc.

 


 EX-3.149(B) 299 a2202241zex-3_149b.htm EX-3.149(B)

Exhibit 3.149(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

THE METROPOLITAN CLUB OF CHICAGO, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Illinois, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Illinois, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

4


 

meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Illinois and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Illinois whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

11


 

the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.150(A) 300 a2202241zex-3_150a.htm EX-3.150(A)

Exhibit 3.150(a)

 

STATE of DELAWARE
CERTIFICATE of AMENDMENT of
CERTIFICATE of INCORPORATION

 

·                             First: That at a meeting of the Board of Directors of The Owner’s Club Holding, Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

 

Resolved, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered “1” so that, as amended, said Article shall be and read as follows:

 

“The name of the corporation is: THE OWNER’S CLUB, INC.”

 

·                             Second: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.

 

·                             Third: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

·                             Fourth: That the capital of said corporation shall not be reduced under or by reason of said amendment.

 

 

 

BY:

 

/s/ Thomas T. Henslee

 

 

 

(Authorized Officer)

 

 

 

 

 

NAME:

 

Thomas T. Henslee, Secretary

 

 

 

(Type or Print)

 

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 02/07/2001

010062300 — 2514425

 

 


 

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 08/16/1996

960239723 — 2514425

 

 

 

 

 

 

 

[A signature should be in black, but may be an original signature, or a facsimile, conformed, or electronically transmitted signature. NOTE: A document which has been telecopied twice is NOT of acceptable quality for filing.]

 

CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE

AND OF REGISTERED AGENT

 

It is hereby certified that:

 

1.  The name of the corporation (hereinafter called the “corporation”) is THE OWNER’S CLUB HOLDING, INC.

 

2.  The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle.

 

3.  The registered agent of the corporation within the State of Delaware is hereby changed to Corporation Service Company, the business office of which is identical with the registered office of the corporation as hereby changed.

 

4.  The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.

 

Signed on August 7, 1996.

 

 

 

/s/ Terry A. Taylor

 

Terry A. Taylor, Secretary

 


 

 

 

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 04:30 PM 06/08/1995

950127827 — 2514425

 

CERTIFICATE OF INCORPORATION

 

OF

 

The Owner’s Club Holding, Inc.

 

1.  The name of the corporation is:

 

The Owner’s Club Holding, Inc.

 

2.  The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

 

3.  The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

4.  The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00).

 

5.  The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot.

 

6.  The name and mailing address of the incorporator is:

 

M. C. Kinnamon
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801

 

7.  A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit.

 

8.  The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware.

 

I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 8th day of June, 1995.

 

 

 

/s/ M.C. Kinnamon

 

M. C. Kinnamon

 


 EX-3.150(B) 301 a2202241zex-3_150b.htm EX-3.150(B)

Exhibit 3.150(b)

 

BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
THE OWNER’S CLUB HOLDING, INC.

 

ARTICLE I

 

OFFICES

 

Section 1. Principal Office. The corporation will maintain offices for the transaction of business of the corporation at TriWest Plaza, 3030 LBJ Freeway, Dallas, Texas 75234.

 

Section 2. Other Offices. Branch or affiliate offices may at any time be established by the Board of Directors at any place or places where the corporation is qualified to do business.

 

ARTICLE II

 

MEETINGS OF SHAREHOLDERS

 

Section 1. Place of Meetings. All meetings of shareholders shall be held at the principal office of the corporation or at any other place which may be (i) designated by the Board of Directors, or (ii) consented to by the written consent of all shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the corporation, or (iii) in the city of residence of any shareholder holding over two-thirds of the capital stock of the corporation.

 

Section 2. Annual Meetings. The annual meeting of shareholders shall be on the 2nd Thursday of June in each year at 10:00 a.m.; provided, however, that should said day fall upon a legal holiday, then any such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such meetings, Directors shall be elected, reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the power of the shareholders.

 

Section 3. Special Meetings. Special meetings of the shareholders for any purpose whatsoever may be called at any time either by the President or by the Board of Directors, to be held at such time as he or they may designate. In addition, one or more shareholders holding not less than one-fifth of the voting power of the corporation may call such a meeting by causing a written request to be sent by registered mail or delivered personally to the President, Vice President or Secretary. The officer forthwith shall cause notice to be given, as provided below, that a meeting will be held at a time, fixed by the

 

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officer, not less than ten (10) nor more than sixty (60) s after the receipt of the request.

 

Section 4. Notice of Meeting. Not less than ten (10) days prior to any meeting of shareholders, the Secretary or his delegate shall cause written notice of such meeting to be given to all shareholders entitled to vote thereat. If a shareholder gives no address, notice shall be deemed to have been duly given if sent by mail or other means of written communication addressed to the place where the principal office of the corporation is situated, or if published at least once in a newspaper of general circulation in the county in which said office is located.

 

The notice shall specify the place, the day and the hour of such meeting, and, in the case of a special meeting, the general nature of the business to be transacted. No action may be taken at any meeting of shareholders on any of the following proposals unless the notice thereof specifies the general nature of the proposal: (a) a proposal to sell, lease, convey, exchange, transfer or otherwise dispose of all, or substantially all, of the property or assets of the corporation, (b) a proposal to merge or consolidate with another corporation, domestic or foreign, (c) a proposal to reduce the stated capital of the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a plan of distribution of shares, securities, or any other consideration (other than money) in the process of winding up.

 

Section 5. Consent of Absentees. The transactions conducted at any meeting of shareholders, either annual or special, however called and noticed, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

 

Section 6. Quorum. The presence in person or by proxy of persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

 

Section 7. Voting. Unless a record date for voting purposes be fixed, as hereinafter provided, only persons in whose names shares entitled to vote stand on the stock records of the corporation as of the date of such meeting shall be entitled to vote thereat. Except as otherwise provided by law or the

 

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Articles of Incorporation, every shareholder shall be entitled to one vote for each share standing in his name on the record of shareholders of the corporation. Voting rights shall be noncumulative. Except as otherwise provided herein or in the Articles of Incorporation, all corporate actions shall be determined by vote of a majority of the votes cast at a meeting of shareholders entitled to vote thereat. Such vote may be viva voce or by ballot; provided, however, that all elections for Directors must be by ballot upon demand made by a shareholder at any election and before the voting begins. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected.

 

Section 8. Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the Secretary of the corporation.

 

Section 9. Adjourned Meetings and Notice Thereof. Any shareholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but in the absence of a quorum, no other business may be transacted at such meeting.

 

When any shareholders’ meeting, either annual or special, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Except as provided above, it shall not be necessary to give any notice of any adjournment or of the business to be transacted at any adjourned meeting other than by announcement at the meeting at which such adjournment is taken.

 

Section 10. Action Without Meeting. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if authorized by a writing signed by all of the persons who would be entitled to vote upon such action at a meeting and filed with the Secretary of the corporation; provided, however, a meeting shall be held for dissolution, transfer of all or substantially all of the assets of the corporation, or for merger or consolidation of the corporation with other corporations, if same is required under applicable law.

 

ARTICLE III

 

DIRECTORS

 

Section 1. Powers. Subject to limitations imposed by law or by the Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be controlled by, the Board of Directors. In the exercise of its powers, the Board may appoint an Executive Committee and other committees and may delegate to

 

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the Executive Committee any of the powers and authority of the Board in the management of the business and affairs of the corporation, except the power to declare dividends and to adopt, amend or repeal bylaws. The Executive Committee shall be composed of two or more Directors.

 

Section 2. Number of Directors. The authorized number of Directors of the corporation shall be not less than one nor more than five until changed by amendment of the Articles of Incorporation or by a bylaw duly adopted by the shareholders amending this section. Directors need not be shareholders of the corporation.

 

Section 3. Election and Term of Office. The Directors shall be elected at the annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected thereat, Directors may be elected at any special meeting of shareholders held for that purpose. Directors shall hold office until the election and qualification of their respective successors.

 

Section 4. Vacancies. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual or a special meeting of the shareholders. If the entire Board of Directors resigns at one time, the shareholders shall, within a reasonable time thereafter, at a regular or special meeting, as provided herein, elect a new Board of Directors.

 

A vacancy in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, or if at any annual or special meeting of shareholders at which any Director is elected the authorized number of Directors is increased or if the shareholders fail to elect the full authorized number of Directors to be voted for at that meeting.

 

The shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the remaining Director or Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board or the shareholders shall have the power to elect a successor to take office when the resignation is to become effective.

 

No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of his term of office.

 

Section 5. Quorum. A majority of the authorized number of Directors shall be necessary to constitute a quorum of the Board for the transaction of business. Every act or decision done or made by a majority of the Directors present at a meeting duly

 

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held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law.

 

Section 6. Place of Directors’ Meetings. Meetings of the Board of Directors shall be held at the principal office of the corporation, or at any other location which has been designated by resolution of the Board, or by written consent of all of the Directors.

 

Section 7. Regular Meetings. Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of electing officers and transacting any other business which may come before them. No notice of such meeting need be given.

 

Section 8. Special Meetings. Special meetings of the Board of Directors for any purpose or purposes shall be called by the President, or, if he is absent or unable or refuses to act, by any Vice President or by any two Directors.

 

Written notice of the time and place of special meetings shall be delivered personally to each Director or sent to each Director by mail or other form of written communication, charges prepaid, addressed to him at his address as is shown upon the records of the corporation, or, if it is not so shown and if it is not readily ascertainable, addressed to him at the city or place where the meetings of the Directors are regularly held. Notices mailed or telegraphed shall be deposited in the United States mail or delivered to the telegraph company at the place where the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting, and notices delivered personally shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting.

 

Section 9. Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place are fixed at the meeting adjourned.

 

Section 10. Waiver of Notice: Consent to Meeting. The transactions conducted at any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though conducted at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors signs a waiver of notice, a consent to hold such a meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records and made a part of the minutes of the meeting.

 

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Section 11. Adjournment. A quorum of the Directors may adjourn to meet again at a set day and hour, and in the absence of a quorum, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board.

 

Section 12. Action Without Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors.

 

Section 13. Fees and Compensation. Directors shall not receive any stated salary for their services as Directors, but by resolution of the Board, a fee or other remuneration, with or without expenses of attendance, may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent or employee, or otherwise, and receiving compensation therefor.

 

Section 14. Indemnification of Directors, Officers and Employees.

 

A. In the event a person is sued, either alone or with others, because he is or was a Director, officer or employee of the corporation, in any proceeding arising out of his alleged misfeasance or nonfeasance in the performance of his duties as such Director, officer or employee, or out of any alleged wrongful act by the corporation, he shall be indemnified for his reasonable expenses, including attorneys’ fees incurred in the defense of the proceeding, if both of the following conditions exist: (i) the person sued is successful in whole or in part, or the proceeding against him is settled with the approval of the court, and (ii) the court finds that his conduct fairly and equitable merits such indemnity.

 

The amount of such indemnity may be assessed against the corporation, its receiver, its trustee, or any other proper party, by the court in the same or in a separate proceeding and shall be so much of the expenses, including attorneys’ fees incurred in the defense of the action as the court determines and finds to be reasonable. Application for such indemnity may be made either by a person sued or by the attorney or other person rendering services to him in connection with the defense, and the court may order fees and expenses to be paid directly to the attorney or other person although he is not a party to the proceeding. Notice of the application for such indemnity shall be served upon the corporation, its receiver, or its trustee and upon the plaintiff and other parties to the proceeding. The court may also order notice to be given to the shareholders in

 

6


 

the manner provided elsewhere in these bylaws for giving notice of shareholders’ meetings, in such form as the court directs.

 

B. Notwithstanding the foregoing provisions, the Board of Directors may authorize the corporation to pay expenses incurred by or to satisfy a judgment or fine rendered or levied against a present or former Director, officer or employee of the corporation in an action brought by a third party against such person (whether or not the corporation is joined as a party defendant) to impose a liability or penalty on such person for an act alleged to have been committed by such person in the performance of his duties as such Director, officer or employee, or by the corporation, or by both, provided the Board of Directors determines that such Director, officer or employee was acting in good faith within what he reasonably believed to be the scope of his employment or authority and for a purpose which he reasonably believed to be in the best interests of the corporation or its shareholders. Payments authorized hereunder include amounts paid and expenses incurred in settling any such action or threatened action. This Paragraph does not apply to any action instituted or maintained as the right of the corporation by a shareholder or holder of a voting trust certificate representing shares of the corporation.

 

C. The provisions of this Section shall apply to the estate, executor, administrator, heirs, legatees or devisees of any such present or former Director, officer or employee of the corporation.

 

D. The Board of Directors may, at its discretion, authorize the purchase of a policy or policies of insurance against any liability of the corporation to indemnify any person pursuant to this Section, containing such terms and conditions as the Board may deem appropriate. Such policy or policies may include provisions for the direct indemnification of directors, officers or other persons for expenses of a kind not subject to indemnification hereunder, provided the premiums on such combined policy are, in the judgment of the Board, fairly allocated between the corporation and the insured persons.

 

ARTICLE IV

 

OFFICERS

 

Section 1. Officers. The corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected annually by the Board of Directors and each shall hold office until he shall resign or shall be removed or otherwise disqualified to serve and until his successor shall be elected.

 

Section 2. Other Officers. The corporation may also have, in the discretion of the Board of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or more Assistant

 

7


 

Treasurers, and such other officers and agents shall hold office for such terms and have such authority and perform such duties as the Board of Directors may from time to time specify, and shall hold office until they shall resign or shall be removed or otherwise disqualified to serve.

 

Section 3. Removal and Resignation. Any officer or agent may be removed, either with or without cause, by a majority of the Directors at the time in office at any regular or special meeting of the Board, or, except in case of an office chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

 

Any officer or agent may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the corporation. Any such resignation shall take effect as of the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.

 

Section 5. Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors.

 

Section 6. President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, at all meetings of the Board of Directors. He shall be an ex officio member of all the standing committees, including the Executive Committee, if any, and shall have the general powers and duties of management usually vested in the office of the President of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors.

 

Section 7. Vice President. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and

 

8


 

perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors.

 

Section 8. Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the corporation, or at such other place as the Board of Directors may order, of all meetings of Directors and shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors’ meetings, the number of shares present or represented at shareholders’ meetings and the proceedings thereof.

 

The Secretary shall keep, or cause to be kept, at the principal office of the corporation, or at the office of the corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, and the number and date of cancellation of every certificate surrendered for cancellation.

 

The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the corporation in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

Section 9. Treasurer. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account. The books of account shall at all reasonable times be open to inspection by any Director.

 

The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Board, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors.

 

9


 

ARTICLE V

 

MISCELLANEOUS

 

Section 1. Record Date and Closing Stock Books. The Board of Directors may fix a time as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive any dividend or distribution or any allotment of rights, or to exercise rights in respect to any change, conversion or exchange of shares. The record date so fixed shall not be more than fifty (50) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders who are of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

 

The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of a period not more than fifty (50) days prior to the date of a shareholders’ meeting, the date when the right to any dividend, distribution or allotment of rights vests, or the effective date of any change, conversion or exchange of shares.

 

Section 2. Inspection of Corporate Records. The share register or duplicate share register, the books of account and minutes of proceedings of the shareholders, the Board of Directors and the Executive Committee shall be open to inspection upon the written demand of any shareholder, or the holder of a voting trust certificate, at any reasonable time and for a purpose reasonably related to his interests as a shareholder, or as the holder of such voting trust certificate, and shall be exhibited at any time when required by demand at any shareholders’ meeting of ten percent (10%) of the shares represented at the meeting. Such inspection may be made in person or by an agent or attorney and shall include the right to make extracts. Demand of inspection, other than at a shareholders’ meeting, shall be made in writing upon the President, Secretary or Assistant Secretary of the corporation.

 

Every Director shall have the right at any reasonable time to inspect the books, records, documents of every kind, and the physical properties of the corporation and of its subsidiary corporations, domestic or foreign.

 

Section 3. Certificates for Shares. A certificate or certificates for shares of the corporation (in such form as may be approved from time to time by the Board of Directors) shall be issued to each stockholder when such shares are fully paid. The certificates shall be numbered and the holder’s name, number of shares and the date of issue shall be entered in the books of the corporation as they are issued. The certificates shall exhibit

 

10


 

the holder’s name, the number and class of shares evidenced thereby or a statement that the shares are without par value, and such additional information as may be required by the Board of Directors. They shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary, or be authenticated by facsimiles of the signatures of the President and the Secretary. Every certificate authenticated by a facsimile of a signature must be countersigned by a transfer clerk.

 

Section 4. Transfer of Stock. The corporation shall recognize the right of the person registered on its books as owner of shares to receive dividends and to vote as such owner. Shares may be transferred on the books of the corporation only by the person named in the certificate as the owner thereof, or by his agent, attorney or legal representative, upon surrender to the Secretary of the corporation of a certificate, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Secretary shall thereupon cause a new certificate to be issued to the person entitled thereto and shall cancel the old certificate and record the transaction upon the books of the corporation.

 

Section 5. Lost Certificates. New certificates for shares or other securities of the corporation may be issued for and in place of any such instrument theretofore issued which is alleged to have been lost or destroyed. The Directors may, in their discretion, require the owner of such lost or destroyed instrument, or his legal representative, to give the corporation a bond or other security in an adequate amount as indemnity against any claim that may be made against the corporation. A new instrument may be issued, however, without requiring any bond or other security when in the judgment of the Directors it is proper to do so.

 

Section 6. Corporate Seal. A corporate seal shall be provided and adopted by the Board of Directors and shall contain the name of the corporation and such other wording as the Board may deem suitable or as may be required by law.

 

Section 7. Contracts — Execution of Documents. The Board of Directors may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount; except, however, the club membership secretary may execute membership application agreements on behalf of the corporation.

 

11


 

All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of payable to the corporation shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by resolution of the Board of Directors.

 

Section 8. Representation of Shares of Other Corporations. The President or any Vice President and the Secretary or Assistant Secretary of this corporation are authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all shares held by this corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

 

Section 9. Inspection of Bylaws. The corporation shall keep in its principal office for the transaction of business the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the shareholders at all reasonable times during office hours.

 

ARTICLE VI

 

AMENDMENTS

 

Section 1. Power of Shareholders. New Bylaws may be adopted or these Bylaws may be amended or repealed by the vote of shareholders entitled to exercise a majority of the voting power of the corporation or by the written consent of such shareholders, except as otherwise provided by the Articles of Incorporation, provided that the vote of written consent of shareholders holding more than seventy-five percent (75%) of the voting power of the corporation shall be required to reduce the authorized number of Directors.

 

Section 2. Power of Directors. Subject to the right of shareholders to adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or amendment thereof changing the authorized number of Directors, may be adopted, amended or repealed by the Board of Directors at any regular or special meeting thereof.

 

12


 EX-3.151(A) 302 a2202241zex-3_151a.htm EX-3.151(A)

Exhibit 3.151(a)

 

CERTIFIED TO BE A GENUINE AND CORRECT COPY

 

 

Jim Miles

1  

AS TAKEN FROM AND COMPARED WITH THE

 

SECRETARY OF STATE

[ILLEGIBLE]

 

FILED

 

 

 

OCT 12 2010

 

FEB 16 1999

 

 

 

 

/s/ Mark Hammond

 

AM

PM

SECRETARY OF STATE OF SOUTH CAROLINA

 

7 8 9 10 11 12 1 2 3 4 5 6

 

CERTIFICATE OF AMENDMENT

 

TO

 

CERTIFICATE OF LIMITED PARTNERSHIP

 

OF

 

THE OWNERS CLUB AT HILTON HEAD, L.P.

 

This certificate of amendment is filed pursuant to Section 33-42-220(a) of the S.C. Code of Laws, as amended effective September 1, 1986.

 

1. The name of the limited partnership is

The Owners Club at Hilton Head, L.P.

 

2. The date of filing of the original Certificate of Limited Partnership was

11/18/94

file number 941122102605

 

3. The provision of the Certificate of Limited Partnership relating to Registered Agent is amended as follows:

 

The new Registered Agent Name is to be: Corporation Service Company

 

The new Registered Agent address is to be: 2019 Park Street

Columbia, SC 29201

 

 

Signed on February 1999

 

 

 

BY:

The Manager of the Owners Club, Inc.,

Corporation Service Company

 

 

its General Partner

 

 

 

 

 

By:

/s/ Thomas T. Henslee

/s/ Brian Kelly Courtney

 

 

Thomas T. Henslee, Secretary

Brian Kelly Courtney

 

 

 

 

SC LP D-:CERTIF OF AMENDMENT

TO CERTIF OF LP 7/95

 

 


 

CERTIFIED TO BE A GENUINE AND CORRECT COPY

 

 

Jim Miles

3  

AS TAKEN FROM AND COMPARED WITH THE

 

SECRETARY OF STATE

[ILLEGIBLE]

 

FILED

 

 

 

OCT 12 2010

 

JUN 11 1999

 

 

 

/s/ Mark Hammond

 

AM

PM

SECRETARY OF STATE OF SOUTH CAROLINA

 

7 8 9 10 11 12 1 2 3 4 5 6

 

STATEMENT OF CHANGE OF THE STREET ADDRESS OF THE AGENT FOR SERVICE OF
 PROCESS OF A SOUTH CAROLINA OR FOREIGN LIMITED PARTNERSHIP

 

Pursuant to the South Carolina Uniform Limited Partnership Act, the undersigned registered agent submits the following information for the purpose of changing the street address of the agent for service of process of the following limited partnership in the State of South Carolina.

 

1. The name of the limited partnership is

 

OWNERS CLUB AT HILTON HEAD, L.P. THE

 

2. The state of formation is

 

SOUTH CAROLINA

 

3. Date of formation or qualification in South Carolina is

 

11/18/94

 

4. The name of the current agent for service of process is

 

CORPORATION SERVICE COMPANY

 

5. The street address of the current agent for service of process in South Carolina is

 

2019 PARK ST
COLUMBIA, SC 29201

 

6. The street address of the agent for service of process is changed to is

 

1301 GERVAIS STREET
COLUMBIA, SOUTH CAROLINA 29201

 

7. The address of the agent for service of process and the address of the business office of the registered agent as changed, will be identical.

 

8. The above named limited partnership has been notified of the change.

 

Dated: June 10, 1999

 

 

 

CORPORATION SERVICE COMPANY

 

(As Registered Agent)

 

 

 

 

 

By:

/s/ John H. Pelletier

 

 

John H. Pelletier, Asst. VP

 


 

CERTIFIED TO BE A GENUINE AND CORRECT COPY

 

FILED

AS TAKEN FROM AND COMPARED WITH THE

 

SEP 3 2002

[ILLEGIBLE]

 

Jim Miles

1

 

 

 

 

OCT 12 2010

 

SECRETARY OF STATE

 

 

 

/s/ Mark Hammond

 

 

 

SECRETARY OF STATE OF SOUTH CAROLINA

 

 

 

AGENTS STATEMENT OF CHANGE OF ADDRESS FOR SERVICE OF PROCESS

 

Pursuant to Section 33-42-100 et seq. of the South Carolina Code of Laws, as amended, the undersigned registered agent submits the following information for the purpose of changing the address of the agent for service of process of the following limited partnership in the State of South Carolina.

 

1.             The name of the limited partnership is

 

OWNERS CLUB AT HILTON HEAD, L.P. THE

 

2.             The state of organization is

 

SOUTH CAROLINA

 

3.             The date it was organized or authorized to transact business in South Carolina is

 

11/18/1994

 

4.             The street address of the current agent for service of process is

 

1301 Gervais Street

Columbia SC 29201

 

5.             The street address to which the agent for service of process is to be changed is

 

5000 Thurmond Mall Boulevard

Columbia, SC 29201

 

6.             The name of the limited partnership’s current agent for service of process is Corporation Service Company

 

7.             The address of the registered office and the address of the business office of the registered agent, as changed, will he identical.

 

8.             The above named limited partnership has been notified of the change.

 

 

Dated August 30, 2002

 

 

 

CORPORATION SERVICE COMPANY

 

 

 

 

 

/s/ John H. Pelletier

 

John H. Pelletier

Assistant Vice President

 


 

CERTIFIED TO BE A GENUINE AND CORRECT COPY

 

071213-0325

FILED 12//06/2007

AS TAKEN FROM AND COMPARED WITH THE

 

OWNERS CLUB AT HILTON HEAD, LP THE

ORIGINAL [ILLEGIBLE]

 

Filing Fee $10.00 ORIG [Barcode]

 

 

Mark Hammond

South Carolina Secretary of State

OCT 12 2010

 

 

 

 

 

/s/ Mark Hammond

 

 

 

SECRETARY OF STATE OF SOUTH CAROLINA

 

 

 

AGENT’S STATEMENT OF CHANGE OF ADDRESS FOR SERVICE OF PROCESS

 

Pursuant to Section 33-42-100 et seq of the South Carolina Code of Laws, as amended, the undersigned registered agent submits the following information for the purpose of changing the address of the agent for service of process of the following limited partnership in the State of South Carolina

 

1.                         The name of the limited partnership is

 

OWNERS CLUB AT HILTON HEAD, L P THE

 

2.                          The state of organization is

 

SOUTH CAROLINA

 

3.                          The date it was organized or authorized to transact business in South Carolina is 11/18/1994

 

4.                          The street address of the current agent for service of process is

 

5000 Thurmond Mall Boulevard
Columbia, SC 29201

 

5.                          The street address to which the agent for service of process is to be changed is

 

1703 Laurel Street
Columbia, SC 29201

 

6.                          The name of the limited partnership’s current agent for service of process is

 

CORPORATION SERVICE COMPANY

 

7.                          The address of the registered office and the address of the business office of the registered agent, as changed, will be identical

 

8.                          The above named limited partnership has been notified of the change

 

 

Dated November 30, 2007

 

 

 

CORPORATION SERVICE COMPANY

 

 

 

 

 

/s/ John H. Pelletier

 

John H Pelletier

Assistant Vice President

 


 

CERTIFIED TO BE A GENUINE AND CORRECT COPY

 

Jim Miles

AS TAKEN FROM AND COMPARED WITH THE

 

SECRETARY OF STATE

ORIGINAL [ILLEGIBLE]

 

FILED

 

 

 

OCT 12 2010

 

NOV 18 1994

 

 

 

/s/ Mark Hammond

 

AM

PM         

SECRETARY OF STATE OF SOUTH CAROLINA

 

7 8 9 10 11 12 1 2 3 4 5 6

 

STATE OF SOUTH CAROLINA

)

 

)

CERTIFICATE OF LIMITED PARTNERSHIP

COUNTY OF BEAUFORT

)

 

This Certificate of Limited Partnership, executed on this 3rd day of November, 1994 (the “Certificate”) by Manager at Owner’s Club, Inc., a South Carolina corporation, as the general partner of The Owners Club at Hilton Head, L.P., a South Carolina limited partnership.

 

PART ONE

 

Name. The name of the limited partnership is The Owners Club at Hilton Head, L.P.

 

PART TWO

 

Business Address and Agent for Service of Process. The address of the office of the limited partnership is c/o The Melrose Company, Inc., 400 Main Street, Hilton Head Island, South Carolina 29926; the name and address of the agent for service of process is Robert T. Kolb, c/o The Melrose Company, Inc., 400 Main Street, Hilton Head Island, South Carolina 29926.

 

PART THREE

 

Name and Address of the General Partner. The name and address of the general partner is Manager at Owner’s Club, Inc., c/o The Melrose Company, Inc., 400 Main Street, Hilton Head Island, South Carolina 29926.

 

PART FOUR

 

Term. The term of the partnership as a limited partnership under this agreement shall commence on the date of filing of this Certificate of Limited Partnership in the office of the Secretary of State of South Carolina, and shall be dissolved on December 31, 2024, unless the partnership shall be dissolved prior to such date in accordance with the Limited Partnership Agreement.

 

1


 

The general partner, by executing and delivering an execution page, which is attached hereto and made a part hereof, has executed this Certificate of Limited Partnership effective as of the day and year first above-written.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership effective as of the day and year first above written.

 

 

IN THE PRESENCE OF:

 

GENERAL PARTNER:

 

 

MANAGER AT OWNER’S CLUB, INC., a South Carolina corporation

 

 

 

 

 

 

/s/ Janet L. Parkinson

 

By:

/s/ Robert T. Kolb

 

 

 

Robert T. Kolb, Vice President

/s/ Joy E. Stanton

 

 

 

 

STATE OF SOUTH CAROLINA

)

 

 

)

PROBATE

COUNTY OF BEAUFORT

)

 

 

PERSONALLY appeared before me Janet L. Parkinson, and made oath that (s)he saw the within named Manager at Owner’s Club, Inc., a South Carolina corporation, by Robert T. Kolb, its Vice President, sign, seal and as its act and deed deliver the within Certificate, and that (s)he with Joy E. Stanton witnessed the execution thereof.

 

 

 

 

/s/ Janet L. Parkinson

 

 

 

 

 

 

SWORN to before me this 3rd day of November, 1994.

 

 

 

 

 

/s/ Joy E. Stanton

(L.S.)

Notary Public for South Carolina

 

 

My Commission Expires:

11/14/2000

 

 

 

2


 EX-3.151(B) 303 a2202241zex-3_151b.htm EX-3.151(B)

Exhibit 3.151(b)

 

THE OWNER’S CLUB AT HILTON HEAD, L.P.
AMENDED LIMITED PARTNERSHIP AGREEMENT

 

This Amended Limited Partnership Agreement (this “Amendment”) of The Owner’s Club at Hilton Head, L.P., a limited partnership organized under the laws of the state of South Carolina is entered into this 10th day of November, 2010 by and between The Manager at Owner’s Club, Inc., a South Carolina Corporation, as the general partner (the “General Partner”) and The Owner’s Club of South Carolina, L.L.C., a Delaware limited liability company, as the limited partner (the “Limited Partner” and together with the General Partner, the “Partners”). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Partnership Agreement (defined below).

 

RECITALS

 

A.                     The Partners entered into a Limited Partnership Agreement dated as of November 1, 1994 (the “Partnership Agreement”).

 

B.                       The Partners desire to amend the Partnership Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

 

1.                         Section 2.2 of the Partnership Agreement is amended to read as follows:

 

2.2                    The Partnership and the General Partner may engage in any lawful activity.

 

2.                         Except as modified herein, the Partnership Agreement shall continue in full force and effect.

 

[The remainder of this page is intentionally blank.]

 


 

IN WITNESS WHEREOF, the undersigned have executed this Amendment.

 

 

 

GENERAL PARTNER:

 

 

 

THE MANAGER AT OWNER’S CLUB, INC.

 

 

 

 

 

By:

/s/ Eric Affeldt

 

Name:

Eric Affeldt

 

Title:

President

 

 

 

LIMITED PARTNER:

 

 

 

THE OWNER’S CLUB OF SOUTH CAROLINA, L.L.C.

 

 

 

 

 

By:

/s/ Eric Affeldt

 

Name:

Eric Affeldt

 

Title:

President

 

Signature Page to Amendment to LP Agreement — The Owner’s Club at Hilton Head. L.P.

 


 

THE OWNERS CLUB AT HILTON HEAD, L.P.
LIMITED PARTNERSHIP AGREEMENT

 

THIS LIMITED PARTNERSHIP AGREEMENT made and entered into this 1st day of November, 1994, by and between MANAGER AT OWNERS CLUB, INC., a South Carolina corporation (the “General Partner”), and THE OWNER’S CLUB OF SOUTH CAROLINA, L.L.C., a Delaware limited liability company (the “Limited Partner”), (the General Partner and Initial Limited Partner are collectively referred to as the “Partners”).

 

IT IS AGREED by the parties to form a limited partnership pursuant to the provisions of the South Carolina Uniform Limited Partnership Law and the laws of the State of South Carolina as follows:

 

ARTICLE I
PARTNERSHIP NAME

 

1.1                   The name of the Partnership shall be The Owners Club at Hilton Head, L.P.

 

ARTICLE II
PURPOSES

 

2.1                   The Partnership is organized for the following purposes:

 

2.1.1 To purchase or otherwise acquire undeveloped real estate located in Beaufort County, South Carolina known as Indigo Run, containing approximately 40 acres more or less, and being more specifically described in Exhibit “A” which is attached to this Agreement and is herein incorporated by reference (the “Property”).

 

2.1.2 To own, operate, encumber, maintain, develop and improve the Property as The Owners Club at Hilton Head and to otherwise improve and develop the Property including grading, paving and dedicating roads, streets, electrical and other necessary utility services to the Property.

 

2.1.3 To sell, lease, exchange, assign, convey or otherwise dispose of, and otherwise deal in, the Property or portions thereof from time to time owned by the Partnership and any right or interest therein owned or acquired by the Partnership in such portion and on such terms as the General Partner deems prudent.

 


 

2.1.4 To borrow such sums of money as are necessary for the purpose of improving and developing the Property.

 

2.1.5 To market, sell, assign, convey and otherwise deal in the sale of interval ownership interests in The Owners Club at Hilton Head.

 

2.1.6 To engage in any other activity which is related either directly or indirectly to the foregoing.

 

2.2                   The Partnership and the General Partner may engage in any activities or possess an interest in other businesses which are related to or incidental to the purposes set out above.

 

ARTICLE III
PRINCIPAL PLACE OF BUSINESS

 

3.1                   The principal place of business of the Partnership shall be 400 Main Street, Hilton Head Island, Beaufort County, South Carolina and such other place or places as the General Partner may determine.

 

ARTICLE IV
TERM

 

4.1                   The term of the Partnership shall commence on the date the Certificate is filed and shall continue thereafter until December 31, 2024, unless the Partnership is terminated either in accordance with the terms and provisions of this Agreement or as otherwise provided by law.

 

ARTICLE V
CAPITAL CONTRIBUTIONS AND INTERESTS

 

5.1                   The initial capital contributions of the Partners to the Partnership shall be as set forth on Exhibit “B”, attached hereto.

 

5.2                   No Partner shall have the right to withdraw or reduce its contribution to the capital of the Partnership except as the result of the dissolution of the Partnership or as provided specifically herein or unless mutually agreed in writing by all Partners. No Partner shall be entitled to receive interest on any capital account at any time unless agreed to in writing by each individual Partner.

 

5.3                   The General Partner shall cause to be kept Capital Accounts to be maintained in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv). Also, the Capital Accounts shall, among other things, record accurately the capital contributions made by each of the Partners pursuant

 

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hereto and any additional capital contributions made by the Partners pursuant to this Agreement and any distributions made by the Partnership pursuant to this Agreement.

 

ARTICLE VI
ADDITIONAL CONTRIBUTIONS

 

6.1                   If the funds of the Partnership are insufficient to meet its operating needs and expenses and the General Partner determines that it is not advisable for or prudent for the Partnership to borrow funds, the Partners may meet and mutually agree as to whether to make additional capital contributions and all Partners will be responsible for any capital contributions to which they mutually agree. Capital contributions by the Partners shall not change the percentage of Net Income or Net Losses which are allocated to the Partners in accordance with Article VII.

 

6.2                   No Partner shall be entitled to withdraw from the Partnership any of its capital contribution or additional capital contributions without the written consent of all Partners.

 

6.3                   All Partners shall guarantee debt pro rata based on their respective Percentages or as may be required pursuant to any loan agreement(s).

 

ARTICLE VII
ALLOCATION OF PROFITS AND LOSSES

 

7.1                   Net Income and items in respect thereof for each fiscal year of the Partnership shall be allocated as follows:

 

7.1.1 First, Net Income shall be allocated to all Partners having Deficit Capital Account Balances, in proportion to such Deficit Capital Account Balances, until all such Deficit Capital Account Balances have been eliminated;

 

7.1.2 Then, any remaining Net Income shall be allocated among the General Partner and the Limited Partners in accordance with their respective Percentages.

 

7.2                   Net Loss and items in respect thereto shall be charged to the partners and allocated as follows:

 

7.2.1 Among the General Partner and the Limited Partners in accordance with their respective Percentages, in all such instances subject to the requirements of the Treasury Regulations then in effect under Section 704(b) of the Code.

 

7.2.2 The Net Losses allocated pursuant to Section 7.2.1 hereof to any Partner for any fiscal year shall not exceed the maximum amount of Net Losses that may be

 

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allocated to such Partner without causing such Partner to have an Adjusted Capital Account Deficit at the end of such fiscal year. All Losses in excess of the limitation in this Section 7.2.2 shall be allocated solely to the other Partners in proportion to their respective Percentages. If no other Partner may receive an additional allocation of Net Losses pursuant to the preceding sentence of this Section 7.2.2, such additional Losses not allocated pursuant to Section 7.2.1 of this Agreement or the preceding sentence shall be allocated solely to the General Partner.

 

7.3                   Minimum Gain

 

7.3.1 If there is a net decrease in Partnership Minimum Gain during any Partnership taxable year, certain items of income and gain shall be allocated (on a gross basis) to the Partners in the amounts and manner described in Section 1.704-2(f) and (j)(2)(i) and (iii) of the Treasury Regulations, subject to the exemptions set forth in Section 1.704-2(f)(2), (3), (4) and (5) of the Treasury Regulations. This Section 7.3.1 is intended to comply with the minimum gain chargeback requirement (set forth in Section 1.704-2(f) of the Treasury Regulations) relating to Partnership nonrecourse liabilities (as defined in Section 1.704-2(b)(3) of the Treasury Regulations) and shall be so interpreted.

 

7.3.2 If there is a net decrease in Partner Minimum Gain during any Partnership taxable year, certain items of income and gain shall be allocated (on a gross basis) as quickly as possible to those Partners who had a share of the Partner Minimum Gain (determined pursuant to Section 1.704-2(i)(5) of the Treasury Regulations) in the amounts and manner described in Section 1.704-2(i)(4), (j)(2)(ii) and (iii) of the Treasury Regulations. This Section 7.3.2 is intended to comply with the minimum gain chargeback requirement (set forth in Section 1.704-2(i)(4) of the Treasury Regulations) relating to partner nonrecourse debt (as defined in Section 1.704-2(b)(4) of the Treasury Regulations) and shall be so interpreted.

 

7.4                   Qualified Income Offset. If, after applying Section 7.3.1 and Section 7.3.2, any Partner has an Adjusted Capital Account Deficit, items of Partnership income and gain shall be specially allocated (on a gross basis) to each such Partner in an amount and manner sufficient to eliminate the Adjusted Capital Account Deficit of such Partner as quickly as possible. This Section 7.4 is intended to comply with the “Qualified Income Offset” requirement set forth in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be so interpreted.

 

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7.5                   Basis Adjustments. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations, to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Treasury Regulations.

 

7.6                   Partner Nonrecourse Deductions. Partner Nonrecourse Deductions shall be allocated pursuant to Section 1.704-2(b)(4) and (i)(1) of the Treasury Regulations to the Partner who bears the economic risk of loss with respect to the deductions.

 

7.7                   Curative Allocations. The allocations set forth in Sections 7.2.2, 7.3, 7.4, 7.5, and 7.6 hereof (the “Regulatory Allocations”) are intended to comply with certain requirements of Sections 1.704-1(b) and 1.704-2 of the Treasury Regulations. The Partners do hereby acknowledge and agree that the Regulatory Allocations may not be consistent with the manner in which the Partners intend to make Partnership distributions. Accordingly, the General Partner is hereby authorized and directed to divide other items of income, gain, loss or deduction among the Partners in any reasonable manner so as to prevent the Regulatory Allocations from distorting the manner in which the Partnership distributions would otherwise be divided among the Partners pursuant to the terms of this Agreement. In general, the Partners anticipate that this will be accomplished by specially allocating other items of income, gain, loss or deduction among the Partners so that, after such offsetting special allocations are made, the amount of each Partner’s Capital Account will be, to the extent possible, equal to the Capital Account balance such Partner would have had if the Regulatory Allocations were not a part of this Agreement and all Partnership items had been allocated to the Partners solely pursuant to 7.1 and 7.2 hereof.

 

7.8                   Tax Allocations; Code Section 704(c). In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss and deduction with respect to any property contributed to the capital of the Partnership shall, solely for tax purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of such property to the Partnership for federal income tax purposes and its fair market value.

 

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7.9 Other Allocation Rules.

 

7.9.1 For purposes of determining the Net Income, Net Loss, or any other item allocable to any period, Net Income, Net Loss, and any such other item shall be determined on a daily, monthly, or other basis, as determined by the General Partner using any permissible method under Section 706 of the Code and the Treasury Regulations thereunder.

 

7.9.2 For federal income tax purposes, every item of income, gain, loss, and deduction shall be allocated among the Partners in accordance with the allocations under this Article VII.

 

7.9.3 The Partners are aware of the income tax consequences of the allocations made by this Article VII and hereby agree to be bound by the provisions of this Article VII in reporting their shares of Partnership income and loss for income tax purposes.

 

7.9.4 It is intended that the allocations in this Article VII effect an allocation for federal income tax purposes consistent with Section 704 of the Code and comply with any limitations or restrictions therein. Notwithstanding the preceding provisions of this Article VII, the General Partner is authorized to make any allocations required by Treasury Regulations Sections 1.704-1 or 1.704-2.

 

7.10 General Partner’s Aggregate Interest. Subject to the Regulatory Allocations, and notwithstanding anything else to the contrary contained in this Article VII, the aggregate interest of the General Partner in the Partnership shall equal at least 1% of each material item of partnership income, gain, loss, deduction or credit.

 

ARTICLE VIII
DISTRIBUTIONS

 

8.1 Distributable Cash. At such times as are determined by the General Partner, the Partnership shall make a distribution to the Partners of Distributable Cash in an amount sufficient to enable them to pay income taxes on the Net Income allocated to them by the Partnership (the “Tax Payment Distribution”). The amount of the Tax Payment Distribution to which a Partner is entitled for any year shall be the amount determined by multiplying (A) the percentage equal to the highest federal income tax rate applicable generally to individuals in respect of such year plus seven (7) percentage points times (B) the cumulative Net Income allocated to such Partner through the end of such year, reduced by all cumulative Net Losses allocated to such Partner through the end of such year. Such amount shall then be reduced (but not below zero) by the amount of any Tax

 

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Payment Distributions previously made to such Partner with respect to such year, with the result being each Partner’s unpaid Tax Payment Distribution.

 

8.2 Available Cash. The Partnership shall distribute Available Cash to the Partners in accordance with their respective Percentages. Available Cash will be distributed to the Partners within ninety (90) days after the end of each calendar year, or as soon thereafter as may be practicable, or more frequently as determined by the General Partner.

 

8.3 Liquidating Proceeds. Upon the dissolution and liquidation of the Partnership, the Partnership’s property (i.e., the proceeds of liquidation and any unliquidated Partnership assets) shall be applied (i) first to the payment of all unpaid debts and liabilities of the Partnership (including the Note, as such terms are defined below), including any loans from Partners, and the setting up or replacing of reserves deemed necessary for any anticipated, contingent or unforeseen liabilities of the Partnership, (ii) then to the payment of amounts, if any, required pursuant to the terms of that certain Participation Agreement, dated as of November 1, 1994, by and between the Partnership and RBC Enterprises, Inc., the form of which is attached hereto as Exhibit “C” (the “Participation Agreement”), and (iii) then any remaining assets will be distributed to the Partners with positive Capital Account balances after Capital Accounts have been adjusted to reflect the allocation of gain or loss attributable to such liquidation (whether or not such gain or loss has been recognized for federal income tax purposes) in proportion to such positive Capital Account balances.

 

ARTICLE IX
MANAGEMENT OF THE PARTNERSHIP

 

9.1 The Partnership shall be managed by the General Partner. The General Partner shall have all the rights and powers of a general partner as provided in the Act and as otherwise provided by law and any action taken by the General Partner shall constitute the act of and bind the Partnership. In dealing with the General Partner when acting on behalf of the Partnership, no person shall be required to inquire into and persons shall be entitled to rely conclusively on the power of the General Partner to bind the Partnership.

 

9.2 The General Partner shall be solely responsible for the daily management and regular business affairs of the Partnership and shall carry out the purposes of the Partnership. The General Partner shall cause its officers and agents to devote sufficient time to the business and affairs of the Partnership, and to carry out the duties and

 

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responsibilities of the General Partner hereunder. The General Partner shall represent the Partnership in all transactions with third parties unless it shall have designated in writing another person as representative of the Partnership.

 

9.3 In addition to any other rights and powers provided by law, the General Partner shall have the following specific rights and powers, which it may, in its discretion, exercise for and on behalf of the Partnership:

 

9.3.1 To purchase or otherwise acquire real property and any interest therein, any personal property connected therewith, and to hold, own, operate, control, maintain, manage and develop such property and interests in accordance with the best interest of the Partnership.

 

9.3.2 To hold record title to, or the right to use or possess any real or personal property, including without limitation stock in corporations wholly owned by the Partnership, in the name of the Partnership or in the name of a nominee for any purpose convenient or beneficial to the Partnership.

 

9.3.3 To borrow monies, and if security is required therefore, to mortgage or subject to any other security interest all or any portion of the Property of the Partnership, to obtain replacements of any Mortgage or other security device and to prepay, in whole or in part, refinance, increase, modify, consolidate or extend any mortgage or other security device all of the foregoing upon such terms and in such amounts as its deems, in its discretion, or upon advice of counsel, to be in the best interest of the Partnership.

 

9.3.4 To improve, develop, sell, assign, convey, exchange and otherwise deal in and dispose of such real and personal property of the Partnership upon such terms as it deems to be in the best interests of the Partnership.

 

9.3.5 To make, execute and deliver deeds and other conveyances of title to real and personal property on behalf of the Partnership.

 

9.3.6 To acquire and enter into contracts of insurance necessary or proper for the protection of the Partnership and its properties; and to acquire such a contract or contracts to protect or indemnify the Partners from liability claims or losses or for any purpose convenient or beneficial to the Partnership.

 

9.3.7 To employ from time to time, persons, firms, corporations, including supervisory and managing agents, building management agents, insurance brokers, real estate

 

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brokers, loan brokers, surveyors, contractors, architects, engineers, attorneys and other professionals upon such terms as it may determine and as may be in the best interest of the Partnership. Pursuant to this Paragraph 9.3.7, Affiliates may be so employed, provided that the terms of such employment are based on current market rates for such employment.

 

9.3.8 To pay any and all organizational expenses incurred in the creation of the Partnership and to pay taxes and all expenses incidental to the operation of the Partnership business.

 

9.3.9 To make any elections under any tax laws.

 

9.3.10 To form a not-for-profit corporation for operation of the property owners association as the General Partner may determine as necessary and proper for the conduct of the business of the Partnership and to conduct and carry out the business of the Partnership and hold such offices in such Corporation as may be necessary and desirable.

 

9.3.11 To appoint persons to hold office and sit on the Board of Directors of corporations in which the Partnership may have an interest in any form.

 

9.3.12 To extend credit to the, purchasers of parcels, lots or other portions of the property for value upon such terms and conditions as it deems in its discretion, advisable and in the best interest of the Partnership, and in connection therewith, to accept notes and other evidences of indebtedness, security agreements, deeds of trust, mortgages and other instruments.

 

9.3.13 To execute (without requiring the signatures of any of the other Partners) acknowledge and deliver any and all documents, agreements, certificates and instruments to effectuate any of the foregoing specifically described rights and powers.

 

9.3.14 The General Partner shall have all rights and powers and be subject to all restrictions and liabilities of a Partner and a Partnership without Limited Partners except that the General Partner shall not have authority to admit a person as a partner except in accordance with the terms and provisions of this Agreement, confess a judgment against the partnership or possess Partnership property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose.

 

9.3.15 The Partnership shall, in exchange for the loan of up to One Million Five Hundred Thousand Dollars ($1,500,000) to the Partnership, on November 1, 1994, issue a

 

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promissory note (the “Note”) in the original face amount of One Million Five Hundred Thousand Dollars ($1,500,000), payable to Club Financial Corporation, a Nevada corporation, in the form attached hereto as Exhibit “D”.

 

9.4 The Partnership shall reimburse the General Partner for any reasonable expense incurred by it in the formation, operation and management of the Partnership.

 

9.5 The General Partner shall have no liability to the Partnership or individual partners for any mistakes or errors in judgment or for any act or omission believed by either or both of them in good faith to be within the scope of authority conferred upon them by this Agreement but shall have liability only for acts or omissions involving willful misconduct, fraud or gross negligence as a General Partner. The Partnership shall indemnify, defend and hold the General Partner harmless from, against and in respect of any and all liabilities, damages, law suits, costs or expenses incurred by it as a result of any act or omission with respect to which it is protected under the provisions of this Section. The doing of any act or failure to do any act by the General Partner, the effect of which may cause loss or damage to the Partnership, if done pursuant to advice of legal counsel employed by the General Partner on behalf of the Partnership shall be conclusively presumed not to constitute willful misconduct, fraud or gross negligence on the part of the General Partner unless such advice was induced by the General Partner’s willful misconduct, fraud and gross negligence.

 

9.6 The General Partner and Limited Partners may be a partner, either general or limited, in other partnerships or become associated in some manner with other business, any or all of which may be engaged in a business that is the same or similar to the business of the Partnership and any of which may or may not be an affiliate. The Partnership agrees that the General Partner and Limited Partners may engage in all such other business enterprises and neither the Partnership nor any of the other Partners shall have any right in and to such independent ventures or the income or profits derived therefrom as a result of entering into this Agreement.

 

Further, the General Partner and the Limited Partners and/or their respective Affiliates presently act and in the future may act in a variety of real estate ventures for their own account and as General Partners in Limited Partnership and as managers of projects owned by such Limited Partnerships. In certain of these projects, the General Partner and its affiliates may undertake substantial monetary commitments. In some investments they may possess a greater equity interest than in the Partnership. If a General Partner undertakes major developments, its ability to commit

 

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substantial time, effort, and finances to the Partnership may be limited. The General Partner is required to devote such time to the affairs of the Partnership as, in its sole discretion, it deems reasonably necessary to manage such affairs.

 

9.7 Notwithstanding and without limiting the provisions of this Article IX, all acts of the General Partner, if any, performed in connection with the negotiation and acquisition, on behalf of the Partnership, of the Property, and the execution and delivery of such documents, in its own name but on behalf of the Partnership as are required or desirable to effect such acquisition (including, without limitation, mortgages or security deeds) are hereby ratified and affirmed.

 

9.8 The General Partner shall at all times during the life of the Partnership maintain a total net worth which, in the opinion of counsel to the Partnership, is sufficient so as not to cause the Partnership to be taxed as an association rather than a partnership.

 

ARTICLE X
BOOKS, RECORDS, ACCOUNTS AND REPORTS

 

10.1 At all times during the existence of the Partnership, the General Partner shall keep or cause to be kept by an agent, full and true books of account in which shall be entered fully and accurately each transaction of the Partnership. Such books shall be maintained at the principal office of the Partnership and be opened for reasonable inspection by the Partners or their representatives. Any Partner has the right to inspect and copy said books and records at any time.

 

10.2 The General Partner shall have the books and records of the Partnership examined and income tax returns prepared for the Partnership which show the respective Partner’s share of net profits or losses and other gains or losses, as defined and reflected on the Partnership’s income tax return, and such return shall be distributed to the Partners within ninety (90) days after the close of the taxable year of the Partnership for which such return was prepared.

 

10.3 The Partnership hereby designates Manager at Owners Club, Inc. to perform the duties of tax matters partner for and on behalf of the Partnership.

 

ARTICLE XI
TAXABLE YEAR

 

11.1 The taxable year of the Partnership shall be the calendar year.

 

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ARTICLE XII

BANK ACCOUNTS

 

12.1 All funds of the Partnership shall be deposited in the Partnership name in such bank account or accounts as the General Partner shall designate. Withdrawals from any such bank account or accounts shall be made by the General Partner or by the General Partner’s designated agent.

 

ARTICLE XIII
WITHDRAWAL OR DISQUALIFICATION OF PARTNER

 

If a Partner withdraws or becomes disqualified in accordance with this Article XIII, the Partnership shall dissolve and thereafter conduct only activities necessary to wind up its affairs in accordance with Article XV hereof, unless, within ninety (90) days after the withdrawal or disqualification of the Partner all of the remaining Partners (excluding the withdrawing or disqualified Partner) vote to continue the Partnership. Withdrawal and disqualification, and the effects thereof, shall be accomplished in accordance with the following provisions:

 

13.1 The General Partner shall not withdraw from the Partnership without the written consent of the Limited Partner. Additionally, the Limited Partner shall not withdraw from the Partnership without the written consent of the General Partner.

 

13.2 For the purposes of this Agreement, a Partner shall be deemed to be disqualified upon the occurrence of any of the following events:

 

(a) if the Partner is a natural person, upon his adjudication as an incompetent, his becoming bankrupt or adjudicated insolvent, or his making an assignment for the benefit of creditors; or

 

(b) if the Partner is not a natural person, upon its voluntary dissolution or liquidation, its becoming bankrupt or adjudicated insolvent, its making an assignment for the benefit of creditors, or its becoming subject to involuntary reorganization or liquidation proceedings.

 

13.3 Upon the disqualification of the General Partner and the election by the Limited Partner to continue the Partnership, a new General Partner shall be selected by the Limited Partner. The new General Partner shall receive such Partnership Interest and compensation as the Partners electing him may determine.

 

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ARTICLE XIV
DISSOLUTION

 

14.1 Dissolution of the Partnership shall be caused:

 

14.1.1 By the express will of all Partners; or

 

14.1.2 By the retirement, withdrawal or disqualification of a Partner or Partners (unless the remaining Partners elect to continue the Partnership); or

 

14.1.3 By any event which makes it unlawful for the business of the Partnership to be carried on or for the members to carry it on in partnership; or

 

14.1.4 By decree of a court under applicable provisions of the Act; or

 

14.1.5 By the requirements of any other applicable statutory or judicial authority; or

 

14.1.6 By reason of termination of the Partnership in accordance with Article IV of this Agreement.

 

14.2 For the purposes of any applicable state laws, upon the dissolution of the Partnership, any negative capital account balances of the Partners shall in no event be considered to be an asset of the Partnership and, except as otherwise provided herein, in no event shall the Partners have any obligation to make any repayment thereof or contribution of capital in respect thereto. Notwithstanding the previous sentence, in the event of the liquidation of the General Partner’s Interest, the General Partner shall contribute to the Partnership in accordance with the requirements of Treasury Regulations Section 1.704-1(b)(2)(ii)(c) an amount equal to (but in no event will it be obligated to contribute more than) the lesser of (i) the deficit balance (if any) in the General Partner’s Capital Account; or (ii) the excess of one ninety-ninth (1/99th) of the total capital contributions of the Limited Partners over any previous capital contributions made by the General Partner to the Partnership.

 

ARTICLE XV
WINDING UP OF PARTNERSHIP BUSINESS

 

15.1 Upon dissolution of the Partnership for any reason, the Partnership immediately shall commence to wind-up its affairs. During such wind-up period, the allocations of Net Income, Net Losses and other items shall continue in the same proportions as before the dissolution. A reasonable period of time shall be allowed for the orderly termination of the Partnership’s business, discharge of its liabilities and

 

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distribution or liquidation of the remaining assets so as to enable the Partnership to minimize the normal losses attendant to the liquidation process. A full accounting of the assets and liabilities of the Partnership shall be taken and a statement thereof shall be furnished to each Partner within thirty (30) days after the dissolution. Such accounting and statements shall be prepared under the direction of the General Partner or, if the General Partner is disqualified, by a liquidating trustee selected by the Limited Partner. The Partnership property and assets and/or the proceeds from the liquidation thereof shall be applied in the following order of priority.

 

(a) Payment of the debts and liabilities of the Partnership, in the order of priority provided by law (but excluding any loans by the Partners to the Partnership, but including the Note) and payment of the expenses of liquidation;

 

(b) Setting up of such reserves as the General partner or liquidating trustee may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership or any obligation or liability not then due and payable; provided, however, that any such reserve shall be paid over by the General Partner or liquidating trustee to an escrow agent, to be held by such escrow agent for the purpose of disbursing such reserves in payment of such liabilities, and, at the expiration of such escrow period as the General Partner or liquidating trustee shall deem advisable, to distribute the balance thereafter remaining in the manner hereinafter provided;

 

(c) Payment, on a pro rata basis, of any loans or debts owned to Partners (other than the Note, which shall be paid pursuant to Section 15.1(a));

 

(d) Payment to the Partners, on a pro rata basis, of the remaining positive balances of their Capital Accounts;

 

(e) Distribution, on a pro rata basis, to the Partners of the remaining assets and properties of the Partnership and/or payment to the Partners of the proceeds of the sale thereof in accordance with their Percentages.

 

15.2 No Action for Dissolution. The Partners acknowledge that irreparable damage would be done to the goodwill and reputation of the Partnership if any Partner should bring an action in court to dissolve the Partnership. This Agreement has been drawn carefully to provide fair treatment of all parties and equitable payments in liquidation of the interests

 

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of all Partners. Accordingly, each Partner hereby waives and renounces his right to initiate legal action to seek dissolution, or to seek the appointment of a receiver or trustee to liquidate the Partnership.

 

15.3 No Further Claim. Upon dissolution, each Limited Partner shall look solely to the assets of the Partnership for the return of his investment and if the Partnership’s property remaining after payment or discharge of the debts and liabilities of the Partnership, including debts and liabilities owed to one or more of the Partners, is insufficient to return the aggregate capital contributions of each Limited Partner, such Limited Partners shall have no recourse against the General Partner or any other Limited Partner.

 

ARTICLE XVI
AMENDMENT OF AGREEMENT

 

16.1 This Agreement may only be amended by the mutual agreement in writing by the General Partner and the Limited Partner.

 

ARTICLE XVII
POWERS, RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS

 

17.1 The Limited Partners shall take no part in the conduct or control of the Partnership business and shall have no right or authority to act or sign for, or to obligate the Partnership, but the Limited Partners shall, except as otherwise provided herein, have all the rights of a limited partner under the Act. No Limited Partner shall at any time be entitled to withdraw all or any part of his contributions to the capital of the Partnership except as otherwise provided herein. The Limited Partners shall have no right to demand and receive any property other than cash in return for their capital contributions.

 

17.2 Notwithstanding anything to the contrary herein contained, no Limited Partner shall be liable for any debts or obligations of the Partnership in excess of the sum of (a) his capital contributions to the Partnership which have not been returned to him, plus (b) distributions returned to him as to which, by the terms of the Act, he may remain liable.

 

ARTICLE XVIII
POWER OF ATTORNEY

 

18.1 Each Partner hereby irrevocably constitutes and appoints the General Partner as his true and lawful agent and attorney-in-fact, with full power of substitution, in his name, place, and stead, to make, execute and acknowledge, swear to, record, publish and file:

 

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(a) The Certificate;

 

(b) Any change in the address or location of the principal place of business of the Partnership;

 

(c) Any agreements, documents, certificates or instruments with respect to the Partnership which may be required to be filed under the laws of any state or of the United States, or which the General Partner shall deem advisable to file;

 

(d) Any and all amendments to the Certificate or to this Agreement or the foregoing agreements, documents, certificates, or instruments required or permitted by law or the provisions of this Agreement; and

 

(e) All documents which may be required to effectuate the dissolution and termination of the Partnership.

 

The foregoing power of attorney is coupled with an interest, shall be irrevocable and shall survive the death, incompetency, dissolution, merger, consolidation, bankruptcy, or insolvency of each of the Partners. The Partners shall execute and deliver to the General Partner within five (5) days after receipt of the General Partner’s request therefor, such further designations, powers of attorney and other instruments as the General Partner deems necessary to carry out the purposes of this Agreement.

 

ARTICLE XIX
MISCELLANEOUS PROVISIONS

 

19.1 Notices. All notices under this Agreement shall be in writing and shall be given to the Partner entitled thereto by personal service or by certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, at such address as he may specify in writing.

 

19.2 Captions. Section titles or captions contained in this Agreement are for convenience only and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

 

19.3 Counterparts and Execution. This Agreement may be executed in several counterparts, and all so executed shall constitute one Agreement, binding on all parties hereto, notwithstanding that all the parties are not signatory to the original or the same counterpart.

 

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19.4 Gender and Number. Words of any gender used in this Agreement shall be deemed to include the other gender or the neuter and words in the singular shall be deemed to include the plural and to include the singular when the context requires.

 

19.5 Governing Law. This Agreement and all amendments hereto have been entered into and shall be governed by and construed in accordance with the laws of the State of South Carolina.

 

19.6 Binding Effect. The terms and provisions of this Agreement shall binding upon and inure to the benefit of the heirs, personal representatives, successors, and assign of the respective Partners.

 

19.7 Additional Documents. At any time and from time to time after the date of this Agreement, upon the request of the General Partner, the Partners shall do and perform, or cause to be done and performed, all such additional acts and deeds, and shall execute, acknowledge and deliver, all such additional instruments and documents, as may be required to best effectuate the purpose and intent of this Agreement.

 

19.8 Meetings of Partners; Voting. In any matter described in this Agreement on which any Partner is entitled to grant (or deny) his consent or cast his votes, such Partner may accomplish the same by attending any meeting convened for all of the Partners entitled to vote on the matter or he may grant to any Person a special or general power of attorney to vote for him at such meeting or he may grant (or deny) his consent in writing. Said written consent may be utilized at any meeting in obtaining consent of Partners to a matter submitted to all Partners entitled to grant or deny consent on said matter. The General Partner may in its discretion convene a meeting for any purpose.

 

19.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or agreement among them respecting the subject matter hereof. There are no representations, arrangements, understandings, or agreements, oral or written, among the parties hereto relating to the subject matter of this Agreement, except those fully expressed herein. No change or modification of this Agreement or waiver of any provision hereof shall be valid or binding on the parties hereto, unless such change, modification, or waiver shall be in writing and signed by or on behalf of the parties hereto, and no waiver on one occasion shall be deemed to be a waiver on the same or any other provision hereof in the future.

 

19.10 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be legal, valid, and enforceable. If any term or provision of

 

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this Agreement is held illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall not affect the legality, validity, or enforceability of the remainder of this Agreement.

 

19.11 Partnership Property. The legal title to the real or personal property or interests therein now or hereafter acquired by the Partnership shall be owned, held, or operated in the name of the Partnership or in the name of a nominee, and no Partner individually shall have any ownership interest in or to such property.

 

ARTICLE XX
DEFINITIONS

 

For purposes of this Agreement, the following terms shall have the following meanings:

 

20.1 “Act” means the South Carolina Uniform Limited Partnership Law, as amended from time to time.

 

20.2 “Adjusted Capital Account Deficit” means, with respect to any Partner, the deficit balance, if any, in such Partner’s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments: (a) any amounts that such Partner is, or is deemed to be, obligated to restore pursuant to Section 1.704-1(b)(2)(ii)(c) of the Treasury Regulations, the penultimate sentence of Section 1.704-2(g)(1) of the Treasury Regulations, or the penultimate sentence of Section 1.704-2(i)(5) of the Treasury Regulations, shall be credited to such Capital Account; and (b) the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5), and (6) of the Treasury Regulations shall be debited to such Capital Account. The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith.

 

20.3 “Affiliate” means, with respect to any Partner, (a) a spouse, descendant or ancestor of such Partner; (b) any partnership of which such Partner is a general partner, except the Partnership; (c) any trust or estate in which such Partner has substantial beneficial interest, or of which such Partner serves as trustee or in some other fiduciary capacity, or of which such Partner is the grantor; (d) any corporation or organization (i) of which such Partner is an officer or partner or in which such Partner is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of equity interest therein or (ii) which is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of equity interest of such Partner; and (e) any

 

18


 

Person who is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of equity interest of such Partner, or an Affiliate of such Partner.

 

20.4 “Agreement” means this Partnership Agreement, as the same may be amended from time to time.

 

20.5 “Available Cash” means, for any period, Distributable Cash minus (i) the aggregate amount of distributions to the Partners pursuant to Section 8.1 for such period, minus (ii) the aggregate amount of all payments for such period by the Partnership to Russ Brown & Associates, pursuant to the terms of the Participation Agreement.

 

20.6 “Capital Account” of a Partner means an account maintained for each Partner to which there shall be added the amount of the cash and the fair market value of property contributed by such Partner to the Partnership plus such Partner’s share of Net Income, less (a) all distributions to and withdrawals by such Partner and (b) such Partner’s share of Net Losses. The foregoing provisions and other provisions of this agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2, and shall be interpreted and applied in a manner consistent therewith.

 

20.7 “Certificate” means the certificate of limited partnership required to be filed pursuant to the Act.

 

20.8 “Code” means the Internal Revenue Code of 1986, 26 United States Code Annotated §§1, et seq., as amended from time to time.

 

20.9 “Distributable Cash” means, for any period, all cash received by the Partnership (other than capital contributions or proceeds from a liquidating transaction) after payments to creditors of the partnership (including payments of principal and interest on the Priority Notes and the Note) and provision has been made for reserves in such amounts as the General Partner shall deem reasonable to provide for the ongoing needs of the Partnership including, without limitation, anticipated operating expenses, construction costs and working capital reserves.

 

20.10 “Fiscal Year” of the Partnership means the calendar year, the first Fiscal Year shall commence on the date of this Agreement and shall end on December 31, 1994.

 

20.11 “Limited Partner” or “Limited Partners” shall mean the Initial Limited Partners and a Person or Persons to whom all or any portion of the Interest of the initial Limited Partners are transferred or assigned in accordance with the terms and provisions of this Agreement.

 

19


 

20.12 “Net Income” or “Net Losses” means, for each Fiscal Year or other period, an amount equal to the Partnership’s taxable income or loss for such year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

 

(i) Income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Net Income and Net Losses shall be added to such taxable income or loss.

 

(ii) Any expenditures of the Partnership described in Code Section 705(a)(2)(B), or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income and Net Losses shall be subtracted from such taxable income or loss.

 

(iii) If the value for book purposes of any partnership asset is adjusted, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income and Net Losses.

 

(iv) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the value for book purposes of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its value for book purposes.

 

(v) In lieu of the deduction for depreciation, cost recovery or amortization taken into account in computing such taxable income or loss, there shall be taken into account depreciation based on the adjusted value of an asset for book purposes.

 

(vi) Any items that are specially allocated pursuant to the Regulatory Allocations shall not be taken into account in computing Net Income and Net Losses.

 

20.13 “Partner Minimum Gain” means partner nonrecourse debt minimum gain as determined under the rules of Section 1.704-2(i) of the Treasury Regulations.

 

20.14 “Partner Nonrecourse Deduction” has the meaning set forth in Section 1.704-2(i) (1) and (2) of the Treasury Regulations.

 

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20.15 “Partners” means, collectively, the General and Limited Partners: reference to a “Partner” shall mean any one of the Partners.

 

20.16 “Partnership” means the limited partnership created pursuant to this Agreement.

 

20.17 “Partnership Interest” or “Interest” means, with respect to the Partners, the interest in the Partnership acquired by the Partner which shall include such Partner’s rights in Partnership property and assets and interest in the Partnership, together with all contract rights for such Partner to receive such Partner’s percentage of Net Income and Net Losses and all other rights under this Agreement; provided, however, that a Partnership Interest or Interest does not include any loan by a Partner to the Partnership.

 

20.18 “Partnership Minimum Gain” has the meaning set forth in Section 1.704-2(d) of the Treasury Regulations.

 

20.19 “Percentage” shall mean any Partner’s percentage Partnership Interest, as set forth on Exhibit “B”, attached hereto.

 

20.20 “Person” shall mean an individual, partnership, joint venture, association, corporation, trust, a joint-stock company, an unincorporated organization, a government or political subdivision thereof, or any other legal entity.

 

20.21 “Treasury Regulations” shall mean the United States Department of Treasury Regulations promulgated under the Code, as amended from time to time.

 

21


 

IN WITNESS WHEREOF, the parties hereto have hereunder set their hands as of the day and year first above written.

 

 

 

 

GENERAL PARTNER:

 

MANAGER AT OWNERS CLUB, INC.

 

 

 

 

 

 

 

 

By:

/s/ Jeffrey A. Jahnke

 

 

 

Jeffrey A. Jahnke

 

 

Its:

Vice President

 

 

 

 

LIMITED PARTNER:

 

THE OWNER’S CLUB OF SOUTH CAROLINA, L.C.C.

 

 

 

 

 

 

 

 

By:

/s/ R. Michael Carroll

 

 

 

R. Michael Carroll

 

 

Its:

Vice President

 

22


 

EXHIBIT “A”

 

LEGAL DESCRIPTION OF THE PROPERTY

 


 

EXHIBIT “B”

 

PARTNERS, CAPITAL CONTRIBUTIONS, AND PERCENTAGES

 

Partner

 

Initial Capital Contribution

 

Percentage

 

General Partner

 

$

100.00

 

1

%

Limited Partner

 

$

9.000.00

 

99

%

 

 

$

10,000.00

 

100

%

 


 

EXHIBIT “C”

 

FORM OF PARTICIPATION AGREEMENT

 


 

EXHIBIT “D”

 

FORM OF NOTE

 


 EX-3.152(A) 304 a2202241zex-3_152a.htm EX-3.152(A)

Exhibit 3.152(a)

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 07:03 PM 11/10/2010
FILED 06:58 PM 11/10/2010
 SRV 101077623 - 2444295 FILE

 

 

AMENDED AND RESTATED CERTIFICATE OF FORMATION
OF
THE OWNER’S CLUB OF SOUTH CAROLINA, L.L.C.

 

THIS Amended and Restated Certificate of Formation of The Owner’s Club of South Carolina, L.L.C. (the “LLC”), dated as of November 9, 2010, has been duly executed and is being filed by ClubCorp USA, Inc., as an authorized person, in accordance with the provisions of 6 Del. C. §18-208, to amend and restate the original Certificate of Formation of the LLC which was filed on October 17, 1994, with the Secretary of State of the State of Delaware, as heretofore amended (the “Certificate”), to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.).

 

The Certificate is hereby amended and restated in its entirety to read as follows:

 

Name. The name of the limited liability company formed and continued hereby is The Owner’s Club of South Carolina, L.L.C.

 

Registered Office. The address of the registered office of the LLC in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Registered Agent. The name and address of the registered agent for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

[The remainder of this page is intentionally blanks.]

 


 

IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Formation as of the date first-above written.

 

 

 

ClubCorp USA, Inc.,

 

as an Authorized Person

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name: Ingrid Keiser

 

 

Title: Secretary

 

 


 EX-3.152(B) 305 a2202241zex-3_152b.htm EX-3.152(B)

Exhibit 3.152(b)

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
THE OWNER’S CLUB OF SOUTH CAROLINA, L.L.C.

 

This Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of The Owner’s Club of South Carolina, L.L.C. (the “Company”), is entered into by ClubCorp USA, Inc., a Delaware Corporation, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on October 17, 1994, Randolph D. Addison and Linda Blanton-Myers caused a Certificate of Formation to be executed and filed with the Secretary of State of the State of Delaware, and on August 28, 1996, Terry A. Taylor caused a Certificate of Amendment to Certificate of Formation to be executed and filed with the Secretary of State of the State of Delaware, in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Limited Liability Company Agreement of The Owner’s Club of South Carolina, L.L.C., dated prior to November 10, 2010 entered into by ClubCorp USA, Inc. as the sole equity member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.        Name.

 

The name of the limited liability company continued hereby is The Owner’s Club of South Carolina, L.L.C.

 

Section 2.        Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234-7703, or such other location as may hereafter be determined by the Member.

 

Section 3.        Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.        Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.        Members.

 

(a)         The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to the Existing Agreement.

 

(b)         The Member may act by written consent.

 

Section 6.        Certificates.

 

Each of Randolph D. Addison, Linda Blanton-Myers, and Terry A. Taylor were designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation or Certificate of Amendment to Certificate of Formation, as applicable, with the Secretary of State of the State of Delaware, and all prior actions taken by him or her or them in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation or Certificate of Amendment to Certificate of Formation, as applicable, with the Secretary of State of the State of Delaware, his or her powers as an “authorized person” ceased. Upon the filing of the Certificate of Amendment to the Certificate of Formation, the Member became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.        Purposes.

 

The purpose to be conducted or promoted by the Company is to engage in any lawful business that may be engaged in by a limited liability company organized under the Act.

 

Section 8.        Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

2


 

Section 9.        Management.

 

(a)         Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. The initial number of Directors shall be three. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt
David Woodyard; and
Ingrid J. Keiser.

 

(b)         Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)         Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)         Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)         Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar

 

3


 

communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)          Committees of Directors.

 

(i)        The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)       In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)      Any such committee, to the extent provided in the resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)         Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)         Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)          Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.      Officers.

 

(a)         Officers. The Officers of the Company shall be designated by the Member. Additional or successor Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the

 

4


 

same person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board. The Officers of the Company designated by the Member currently (as of the date of this Agreement) serving are as follows:

 

Eric L. Affeldt              President;

Curt D. McClellan       Treasurer; and

Ingrid J. Keiser            Secretary.

 

(b)         President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed, (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)         Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)         Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)         Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and

 

5


 

disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)          Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)         Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 11.      Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 12.      Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 13.      Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 13, are intended to benefit the Member and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

6


 

Section 14.      Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 15.      Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 16.      Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 17.      Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others, notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 18.      Exculpation and Indemnification.

 

(a)         Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)         To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person

 

7


 

in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)         To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18.

 

(d)         A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)         To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)          The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

 

Section 19.      Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive

 

8


 

distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 20.      Resignation.

 

The Member may resign at any time.

 

Section 21.      Admission of Additional Members.

 

One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 22.      Dissolution.

 

(a)         The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 19 and 21, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 21), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)         Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)         In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

9


 

(d)         The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 23.      Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 15 hereof. The interest of the Member in the Company is personal property.

 

Section 24.      Benefits of Agreement; No Third Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 25.      Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

Section 26.      Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 27.      Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

10

 

Section 28.      Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 29.      Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

 

Section 30.      Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 31.      Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

[SIGNATURE PAGE FOLLOWS]

 

11


 

IN WITNESS WHEREOF, the undesigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CLUBCORP USA, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to A&R LLC Agreement - The Owner’s club of South Carolina, L.L.C.

 


 

SCHEDULE A

 

Definitions

 

A.                      Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means collectively, the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on October 17, 1994, and the Certificate of Amendment to Certificate of Formation filed with the Secretary of State of the State of Delaware on August 28, 1996, as amended or amended and restated from time to time.

 

“Company” means The Owner’s Club of South Carolina, L.L.C., a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting

 

A-1


 

securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 18(a).

 

“Directors” means the persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means ClubCorp USA, Inc., a Delaware corporation, as a member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.                        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value
of Capital
Contribution

 

Membership
Interest

 

ClubCorp USA, Inc.

 

ClubCorp USA, Inc.
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703

 

$100

 

100%

 

 

 

Attention:

Director of Finance and Chief Legal Officer

 

 

 

 

 

 

B-1


 EX-3.153(A) 306 a2202241zex-3_153a.htm EX-3.153(A)

Exhibit 3.153(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
THE PLAZA CLUB OF SAN ANTONIO, INC.

 

The Plaza Club of San Antonio, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is The Plaza Club of San Antonio, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.                         The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF THE PLAZA CLUB OF SAN ANTONIO, INC.”

 

2.                         The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is The Plaza Club of San Antonio, Inc. The Corporation is a for-profit corporation.

 

3.                         The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of San Antonio, State of Texas, including the sports or business club commonly known as Plaza Club — San Antonio (the “Business”);

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                         The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                         The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

6.                         The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                         The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                         The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                         The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                   The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                   The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of The Plaza Club of San Antonio, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

THE PLAZA CLUB OF SAN ANTONIO, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
THE PLAZA CLUB OF SAN ANTONIO, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is The Plaza Club of San Antonio, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of San Antonio, State of Texas, including the sports or business club commonly known as Plaza Club — San Antonio (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one million (1,000,000) shares of Common Stock, with no par value.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

Eric Resnick

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

Martin Newburger

3030 LBJ Freeway
Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.153(B) 307 a2202241zex-3_153b.htm EX-3.153(B)

Exhibit 3.153(b)

 

AMENDED AND RESTATED BYLAWS

OF

THE PLAZA CLUB OF SAN ANTONIO, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.        Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.        Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.        Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.        Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.        Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.        Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.        Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.        Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.        List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.      Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.      Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.      Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.        Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.        Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.        Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.        Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of smother corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.        Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.        Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.        Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.154(A) 308 a2202241zex-3_154a.htm EX-3.154(A)

Exhibit 3.154(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

THE SUMMIT CLUB, INC.

 

The Summit Club, Inc. (the “Corporation”), for the purposes of amending and restating the Articles of Incorporation originally filed under the name The Summit Club, Inc. with the Judge of Probate of Montgomery County, Alabama on February 23, 1989, as amended, pursuant to the Alabama Business Corporation Act, Section 10-2B-10.01, et seq. of the Code of Alabama, 1975, as amended, hereby executes and delivers these articles of restatement setting forth the Amended and Restated Articles of Incorporation of the Corporation as follows:

 

FIRST. The name of the Corporation is The Summit Club, Inc.

 

SECOND. The street address of the Corporation’s current registered office in the State of Alabama is 150 South Perry Street, Montgomery, Alabama 36104. The name of its current registered agent at such office is CSC—Lawyers Incorporating Service Incorporated.

 

THIRD. The Corporation has been organized for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Birmingham, State of Alabama, including the sports or business club commonly known as Summit Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business and any assets thereof including, without limitation, the grant of a security interest in or mortgage on any and all assets of such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Alabama Business Corporation Act and to engage in the

 


 

transaction of any or all lawful business for which corporations may be incorporated under the Alabama Business Corporation Act.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be one or more, as specified in or fixed in accordance with the Bylaws of the Corporation. The Bylaws of the Corporation may establish a variable range for the size of the Board of Directors by fixing a minimum and maximum number of directors. The number of directors may be fixed or changed from time to time, within the minimum and the maximum, by the Board of Directors.

 

(c)                    The Board of Directors of the Corporation may fill any vacancy occurring on the Board of Directors of the Corporation, including, without limitation, any vacancy resulting from an increase in the number of directors of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Alabama, the Board of Directors of the Corporation is expressly authorized to amend and repeal the Bylaws of the Corporation to the fullest extent permitted by the Alabama Business Corporation Act, subject to the power of the shareholders of the Corporation to amend or repeal any Bylaw whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for money damages for any action taken, or any failure to take any action, as a director, except for (i) the amount of a financial benefit received by such director to which

 

2


 

such director is not entitled; (ii) an intentional infliction of harm on the Corporation or its shareholders by such director; (iii) a violation of Section 10-2B-8.33 of the Alabama Business Corporation Act or any successor provision to such section; (iv) an intentional violation of criminal law by such director; or (v) a breach of such director’s duty of loyalty to the Corporation or its shareholders. If the Alabama Business Corporation Act is hereafter amended, or any successor statute thereto is hereafter adopted or amended, to authorize the elimination of or the further limitation of the liability of a director of a corporation, then the liability of a director of the Corporation, in addition to the limitations on liability provided herein, shall be limited to the fullest extent permitted by the Alabama Business Corporation Act, as amended, or any successor statute thereto, as adopted or amended. The limitation on liability of directors of the Corporation contained herein shall apply to liabilities arising out of acts or omissions occurring subsequent to the adoption of this Article ELEVENTH and, except to the extent prohibited by law, to liabilities arising out of acts or omissions occurring prior to the adoption of this Article ELEVENTH. Any repeal or modification of this provision by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability of a director of the Corporation existing at the time of such repeal or modification.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Alabama at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH. No holder of any share or shares of any class of stock of the Corporation shall have any preemptive right to purchase or subscribe for shares of any class of capital stock of the Corporation now or hereafter authorized, including treasury shares, or for any securities convertible into or carrying any optional rights to purchase or subscribe for any shares of any class of capital stock of the Corporation now or hereafter authorized.

 

3


 

The Corporation has caused the foregoing Amended and Restated Articles of Incorporation to be executed by its duly authorized officer on this the 10th day of November, 2010. These Amended and Restated Articles of Incorporation shall be effective upon filing.

 

 

The Summit Club, Inc.

 

 

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser, Secretary

 

This document prepared by:

 

Perkins Coie LLP

1201 Third Avenue, Suite 4800

Seattle WA 98101-3099

 


 EX-3.154(B) 309 a2202241zex-3_154b.htm EX-3.154(B)

Exhibit 3.154(b)

 

AMENDED AND RESTATED BYLAWS

 

OF

 

THE SUMMIT CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.        Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Alabama, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.        Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors or, to the extent required by the Alabama Business Corporation Act, the holders of at least 10 percent of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting, in each case such special meeting to be called in the manner specified in the Alabama Business Corporation Act and these bylaws, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.        Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given in writing and shall state the date, time and place of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation. Notwithstanding the provisions of this Section 1.3 or any provisions of the Alabama Business Corporation Act, the stock or bonded indebtedness of the corporation shall not be increased at a meeting unless notice of such meeting shall have been given as may be required by Section 234 of the Constitution of Alabama as the same may be amended from time to time.

 

Section 1.4.        Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at a different date, time or place, and notice need not be given of any such adjourned meeting if the new date, time or place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the

 


 

adjournment is for more than thirty (30) days, or if after the adjournment a new record date for the adjourned meeting is or must be fixed in the manner specified by the Alabama Business Corporation Act, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.        Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.        Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.        Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after 11 months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a majority of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law, including, without limitation, the Constitution of Alabama, or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.        Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the Board of Directors fixes a new record date for the adjourned meeting, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.

 

Section 1.9.        List of Shareholders Entitled to Vote. After a record date is fixed for a meeting, the corporation shall prepare an alphabetical list of the names of all its shareholders who are entitled to notice of a shareholders’ meeting. The list shall be arranged by voting group (and within each voting group by class or series of shares) and show the address of and number of shares held by each shareholder. The shareholders’ list shall be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the corporation’s principal office or, if the corporation’s principal office is located outside the State of Alabama, at its registered office. A shareholder, his or her agent, or attorney is entitled on written demand to inspect and, for a proper purpose, to copy the list, during regular business hours and at his or her expense, during the period it is available for inspection. The corporation shall make the shareholders’ list available at the meeting, and any shareholder, his or her agent, or attorney is entitled to inspect the list at any time during the meeting or any adjournment. Refusal or failure to prepare or make available the shareholders’ list shall not affect the validity of action taken at the meeting. The stock transfer records of the corporation shall be prima facie evidence as to

 

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who are the shareholders entitled to examine the shareholders’ list or transfer records or to vote at any meeting of shareholders.

 

Section 1.10.      Action By Written Consent of Shareholders. Except as provided in the articles of incorporation of the Corporation, action required or permitted by the Constitution of Alabama or the Alabama Business Corporation Act to be taken at a shareholders’ meeting may be taken without a meeting if the action is taken by all shareholders entitled to vote on the action. The action shall be evidenced by one or more written consents describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered to the corporation for inclusion in the minutes or filing with the corporate records.

 

Section 1.11.      Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.      Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate and which are not inconsistent with applicable law. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting and which are not inconsistent with applicable law. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to

 

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shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.        Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual shareholders’ meeting following his or her election or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a majority of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Alabama and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Alabama whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson

 

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chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.        Action by Unanimous Consent of Directors. Any action required or permitted by the Alabama Business Corporation Act to be taken at a meeting of the Board of Directors or a committee thereof may be taken without a meeting if the action is taken by all members of the Board of Directors or of the committee, as the case may be. The action shall be evidenced by one or more written consents describing the action taken, signed by each director or committee member, as the case may be, and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this Section 2.8 is effective when the last director or committee member, as the case may be, signs the consent, unless the consent specifies a different effective date. A consent signed under this Section 2.8 has the effect of a meeting vote and may be described as such in any document.

 

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ARTICLE III

 

Committees

 

Section 3.1.        Committees. The Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee may have one or more members, who serve at the pleasure of the Board of Directors. The creation of a committee and appointment of members to it shall be approved by the greater of (i) a majority of all the directors in office when the action is taken or (ii) the number of directors required by the articles of incorporation of the corporation or these bylaws to take such action. The provisions of the articles of incorporation of the corporation and these bylaws which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors, shall apply to committees and their members as well; provided, however, that a quorum of a committee of the Board of Directors shall consist of a majority of the members of the committee. To the extent specified by the Board of Directors or in the articles of incorporation of the corporation or these bylaws, each committee may exercise the authority of the Board of Directors. A committee may not however: (1) authorize distributions; (2) approve or propose to shareholders action that the Alabama Business Corporation Act requires be approved by shareholders; (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the articles of incorporation of the corporation; (5) adopt, amend, or repeal bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to formula or method prescribed by the Board of Directors; or (8) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except that the Board of Directors may authorize a committee (or a senior executive officer of the corporation) to do so within limits specifically prescribed by the Board of Directors. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

 

Section 3.2.        Committee Rules. Unless the Board of Directors otherwise provides, each committee created by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.        Certificates. Certificates representing shares of the corporation shall be in such form as shall be determined by the Board of Directors and shall be in accordance with the Alabama Business Corporation Act. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person.

 

Section 6.2.        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law or the articles of incorporation pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses permitted under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall, to the fullest extent not prohibited by applicable law, be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall, to the fullest extent not prohibited by applicable law, have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

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Section 6.6.        Survival of Right; Amendment or Repeal. Any right to indemnification or advancement of expenses provided by or granted pursuant to this Article VI shall continue as to a person who has ceased to be a director or officer, employee or agent or to serve as a director, officer, employee or agent of such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity and shall inure to the benefit of the heirs, executors, administrators and personal representatives of such a person. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.        Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.        Waiver of Notice of Meetings of Shareholders, Directors and Committees. A shareholder may waive any notice required by the Constitution of Alabama, the Alabama Business Corporation Act, the articles of incorporation of the corporation, or these bylaws, including, without limitation, any required notice of the time, place or purpose of any annual or special meeting of shareholders of the corporation, before or after the date and time stated in the notice, in the manner provided for making such waiver in the Alabama Business Corporation Act. Unless another method is specified by the Alabama Business Corporation Act, the waiver shall be in writing, be signed by the shareholder entitled to the notice, and be delivered to the corporation for inclusion in the minutes or filing with the corporate records. A shareholder’s attendance at a meeting shall constitute a waiver of objections (i) to lack of or defective notice of a shareholders’ meeting unless such shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting or (ii) to consideration of particular matters at the meeting that are not within the purpose or purposes described in the meeting notice, unless such shareholder objects to considering the matter before action is taken on the matter. A director or member of a committee may waive any notice required by the Alabama Business Corporation Act, the articles of incorporation of the corporation, or these bylaws before or after the date and time stated in the notice. Except as provided by the following sentence of this Section 7.4, the waiver must be in writing, signed by the director or member of a committee entitled to notice, and filed with the minutes or corporate records. A director’s or committee member’s attendance at or participation in a meeting: (i) waives objection to lack of any required notice to such director or committee member or defective notice of the meeting unless the director or committee member, as the case may be, at the beginning of the meeting (or promptly upon his or her arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to any action taken at the meeting; and (ii) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, if required, unless the director or committee member, as the case may be, objects to considering the matter before action is taken on the matter.

 

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Section 7.5.        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.        Amendment of Bylaws.

 

(A)           Amendment by Board of Directors or Shareholders, (i) The Board of Directors may amend or repeal these bylaws unless:

 

(a)    the articles of incorporation or the Alabama Business Corporation Act reserves this power exclusively to the shareholders in whole or in part; or

 

(b)   the shareholders in amending or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw.

 

(ii)            The shareholders may amend or repeal the bylaws even though the bylaws may also be amended or repealed by the Board of Directors.

 

(B)            Bylaw Increasing Quorum or Voting Requirement for Shareholders. (i) If authorized by the articles of incorporation of the corporation, the shareholders may adopt or amend a bylaw that fixes a greater quorum or voting requirement for shareholders (or voting groups of shareholders) than is required by the Alabama Business Corporation Act. The adoption or amendment of a bylaw that adds, changes, or deletes a greater quorum or voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater.

 

(ii)            A bylaw that fixes a greater quorum or voting requirement for shareholders under Section 7.6(B)(i) may not be adopted, amended, or repealed by the Board of Directors.

 

(C)            Bylaw Increasing Quorum or Voting Requirement for Directors. (i) A bylaw that fixes a greater quorum or voting requirement for the Board of Directors may be amended or repealed as follows:

 

(a)    if originally adopted by the shareholders, only by the shareholders;

 

(b)   if originally adopted by the Board of Directors, either by the shareholders or by the Board of Directors.

 

(ii)            A bylaw adopted or amended by the shareholders that fixes a greater quorum or voting requirement for the Board of Directors may provide that it may be

 

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amended or repealed only by a specified vote of either the shareholders or the Board of Directors.

 

(iii)           Action by the Board of Directors under Section 7.6(C)(i)(b) to adopt or amend a bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater.

 

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 EX-3.155(A) 310 a2202241zex-3_155a.htm EX-3.155(A)

Exhibit 3.155(a)

 

CERTIFICATE REGARDING

 

RESTATED ARTICLES OF INCORPORATION

 

OF

 

THE UNIVERSITY CLUB, INC.

 

Pursuant to Section 79-4-10.07 of the Mississippi Business Corporation Act, the undersigned, in connection with the filing of the Restated Articles of Incorporation of The University Club, Inc. (the “Corporation”), does hereby certify as follows:

 

1.                         The Restated Articles of Incorporation consolidates any and all amendments into a single document, and includes a new amendment or amendments to the Restated Articles of Incorporation currently in effect at the time of the filing.

 

2.                         The name of the corporation is: The University Club, Inc.

 

3.                         The text of each amendment adopted is as follows:

 

See Exhibit A attached hereto and incorporated herein by reference.

 

4.                         The date of each amendment’s adoption is November 9, 2010.

 

5.                         Each amendment was duly approved by the shareholder in the manner required by the Mississippi Business Corporation Act and by the Restated Articles of Incorporation currently in effect at the time of this filing.

 

 

November 10, 2010.

 

/s/ Ingrid Keiser

Date

 

Signature

 

 

 

 

 

 

 

 

Ingrid Keiser

 

 

Name of Signer (Typed or Printed)

 

 

 

 

 

 

 

 

Secretary

 

 

Title

 


 

EXHIBIT A

 

RESTATED ARTICLES OF INCORPORATION

 

OF

 

THE UNIVERSITY CLUB, INC.

 

(For — Profit)

 

Pursuant to the provisions of Section 79-4-10.07 of the Mississippi Business Corporation Act, these Restated Articles of Incorporation amend and restate the original Articles filed on October 8, 1973, as amended and restated, as set forth herein.

 

1.                         The name of the corporation is The University Club, Inc.

 

2.                         The text of the Restated Articles of Incorporation of The University Club, Inc. is as follows:

 

FIRST. The name of the corporation is The University Club, Inc. (the “Corporation”).

 

SECOND. The street address of the Corporation’s registered office in the State of Mississippi is 506 South President Street in the City of Jackson, County of Hinds, 39201. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Jackson, State of Mississippi, including the sports or business club commonly known as University Club of Jackson (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described

 

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above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Mississippi Business Corporation Act.

 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class of shares that together have unlimited voting rights and are entitled to receive the net assets of the Corporation upon dissolution.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Mississippi, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for any action taken, or any failure to take any action as a director, except to the extent such elimination or limitation of liability is not permitted under the Mississippi Business Corporation Act as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

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TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Mississippi at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH. These Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholder of the Corporation by that certain Consent Action dated November 9, 2010, and pursuant to Section 79-4-10.06 of the Mississippi Business Corporation Code. These Restated Articles of Incorporation supersede the original articles of incorporation and all amendments thereto.

 

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IN WITNESS WHEREOF, the undersigned, being a duly authorized Officer of the Corporation, has executed these Restated Articles of Incorporation this 10th day of November, 2010.

 

 

Secretary

 

/s/ Ingrid Keiser

Signer’s Capacity

 

Ingrid Keiser

 


 EX-3.155(B) 311 a2202241zex-3_155b.htm EX-3.155(B)

Exhibit 3.155(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

THE UNIVERSITY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.        Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.        Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons except to the extent allowed by the Mississippi Business Corporation Act. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.        Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. The notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.        Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the date, time and place thereof are announced at the meeting before the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If a new record date for the adjourned meeting is or must be fixed under Section 79-4-7.07 of the Mississippi Business Corporation Act, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date.

 


 

Section 1.5.        Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.        Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.        Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation or applicable law, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after eleven (11) months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8.        Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than seventy (70) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting, which it must do if the meeting is adjourned to a date which is more than one hundred twenty (120) days after the date fixed for the original meeting.

 

Section 1.9.        List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, within at least two (2) business days after notice is given for every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, his agent or his attorney, for any purpose germane to the meeting beginning two (2) business days after notice of the meeting is given continuing through the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination.

 

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during the meeting or any adjournment as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.      Action By Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote (except that at least ten (10) days notice must be given to any nonvoting Shareholders if required by the Mississippi Business Corporation Act or the articles of incorporation), if all Shareholders entitled to vote on the action consent to taking such action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the Shareholders. The action must be evidenced by one (1) or more written consents, setting forth the action so taken, signed by all Shareholders entitled to vote on the action and shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records by delivery to its registered office in the State of Mississippi, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

 

Section 1.11.      Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12.      Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors in accordance with the provisions of Section 79-4-8.03 of the Mississippi Business Corporation Act. Directors need not be shareholders.

 

Section 2.2.        Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon written notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four (24) hours before the special meeting.

 

Section 2.5.        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a

 

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majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.        Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.        Committees. The Board of Directors may designate one or more committees and appoint members of the Board of Directors to serve on them. Each committee must consist of one or more members of the Board of Directors. Unless otherwise provided, by law, the creation of a committee and appointment of members to it must be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the articles of incorporation or by-laws to take action under Section 2.6 hereof. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.        Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

12


 

Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

13


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.        Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.        Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice as long as the waiver is in writing and is signed by such person. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.        Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, unless the articles of incorporation or the Mississippi Business Corporation Act reserves this power exclusively to the shareholders in whole or in part. The shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

14


 EX-3.156(A) 312 a2202241zex-3_156a.htm EX-3.156(A)

Exhibit 3.156(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
TIMARRON GOLF CLUB, INC.

 

Timarron Golf Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is Timarron Golf Club, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.                          The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF TIMARRON GOLF CLUB, INC.”

 

2.                          The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Timarron Golf Club, Inc. The Corporation is a for-profit corporation.

 

3.                          The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Timarron Country Club, in the City of Southlake, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                          The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                          The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

6.                          The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                          The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                          The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                          The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

3


 

10.                    The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                    The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of Timarron Golf Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

TIMARRON GOLF CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
TIMARRON GOLF CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Timarron Golf Club, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Timarron Country Club, in the City of Southlake, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.156(B) 313 a2202241zex-3_156b.htm EX-3.156(B)

Exhibit 3.156(b)

 

AMENDED AND RESTATED BYLAWS
OF
TIMARRON GOLF CLUB, INC.

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.                        Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.                        Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.                        Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.                        Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.                        Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.                        Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.                        Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.                        Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.                        List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.                  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.                  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.                  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.                        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.                        Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.                        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.                        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.                        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.                        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.                        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.                        Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.                        Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.                        Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.                        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.                        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.                        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.                        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.                        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.                        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.                        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.                        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.                        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.                        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.                        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.                        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.                        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.                        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.                        Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.                        Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.                        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.                        Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.157(A) 314 a2202241zex-3_157a.htm EX-3.157(A)

Exhibit 3.157(a)

 

ARTICLES OF RESTATEMENT OF

 

TOWER CITY CLUB OF VIRGINIA, INC.

 

The undersigned corporation, pursuant to Title 13.1, Chapter 9, Article 11 of the Code of Virginia, hereby executes the following articles of restatement and sets forth:

 

1.                                      The name of the corporation immediately prior to restatement is Tower City Club of Virginia, Inc.

 

2.                                      The restatement contains an amendment to the articles of incorporation.

 

3.                                      The text of the amended and restated articles of incorporation is attached hereto.

 

4.                                      The restatement was adopted by the corporation on November 9, 2010.

 

5.                                      The restatement was adopted by unanimous consent of the shareholders.

 

Executed in the name of the corporation by:

 

 

/s/ Ingrid Keiser

 

November 10, 2010.

 

 

 

Ingrid Keiser

 

Secretary

 

 

 

 

 

 

0412515 9

 

(telephone number (optional))

 


 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

TOWER CITY CLUB OF VIRGINIA, INC.

 

Pursuant to Section 13.1-711 of the Virginia Stock Corporation Act, the Articles of Incorporation of Tower City Club of Virginia, Inc. are hereby amended and restated to read as follows:

 

FIRST.  The name of the corporation is Tower City Club of Virginia, Inc. (the “Corporation”).

 

SECOND.

A.

The name of the corporation’s registered agent is Corporation Service Company.

 

 

 

 

B.

The registered agent is (mark appropriate box):

 

 

 

(1)

an individual who is a resident of Virginia and

 

 

 

o

an initial director of the corporation.

 

 

 

o

a member of the Virginia State Bar.

OR

 

 

(2)

x                               a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Vienna, State of Virginia, including the sports or business club commonly known as Tower Club - Tysons Corner (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

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(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Virginia Stock Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Virginia,  the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved].

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under Virginia Stock Corporation Act as the same exists or may hereafter be amended.  Any amendment,

 

3


 

modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Virginia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Corporate action required or permitted by Chapter 9 of the Virginia Stock Corporation Act may be taken without a meeting and without prior notice, if the corporate action is taken by a written consent signed by shareholders who would be entitled to vote at a meeting of holders of outstanding shares having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take the corporate action at a meeting at which all shareholders entitled to vote thereon were present and voted.

 

SIXTEENTH.  These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consents dated November 9, 2010 pursuant to Section 13.1-711 of the Virginia Stock Corporation Act.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

4


 EX-3.157(B) 315 a2202241zex-3_157b.htm EX-3.157(B)

Exhibit 3.157(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

TOWER CITY CLUB OF VIRGINIA, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the Commonwealth of Virginia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken unless the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, in which event the Board of Directors shall fix a new record date. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the Commonwealth of Virginia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. Except to the extent required by the Corporation’s Articles of Incorporation, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the Commonwealth of Virginia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the Commonwealth of Virginia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.158(A) 316 a2202241zex-3_158a.htm EX-3.158(A)

Exhibit 3.158(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

TOWER CLUB OF DALLAS, INC.

 

Tower Club of Dallas, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”).  Pursuant to Sections 3.059 and 3.060 of the TBOC,  the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Tower Club of Dallas, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF TOWER CLUB OF DALLAS, INC.”

 

2.                                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Tower Club of Dallas, Inc.  The Corporation is a for-profit corporation.

 

3.                                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own ownership interests in Dallas Tower Club, Inc. and to manage, lease and/or operate one or more sports or business clubs, in the City of Dallas, State of Texas, including the sports or business club commonly known as Tower Club - Dallas (collectively, the “Business”);

 


 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

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Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

6.                                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

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10.                                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC.  Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Tower Club of Dallas, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter.  This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

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IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

TOWER CLUB OF DALLAS, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

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Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

TOWER CLUB OF DALLAS, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Tower Club of Dallas, Inc.  The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                                  to own ownership interests in Dallas Tower Club, Inc. and to manage, lease and/or operate one or more sports or business clubs, in the City of Dallas, State of Texas, including the sports or business club commonly known as Tower Club - Dallas (collectively, the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock.  The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation.  The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

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Eric Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director.  Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

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 EX-3.158(B) 317 a2202241zex-3_158b.htm EX-3.158(B)

Exhibit 3.158(b)

 

AMENDED AND RESTATED BYLAWS
OF
TOWER CLUB OF DALLAS, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.159(A) 318 a2202241zex-3_159a.htm EX-3.159(A)

Exhibit 3.159(a)

 

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

OF

TOWER CLUB, INC.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), Tower Club, Inc. (the “Corporation”), certifies that:

 

FIRST:  The name of the Corporation is Tower Club, Inc.  The original articles of incorporation were filed with the Secretary of State of the State of Florida on November 13, 1972.

 

SECOND:  These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation.  The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010.  The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD:  The articles of incorporation of the Corporation, as amended to date, are amended and restated in their entirety to read as follows:

 

ARTICLE I

 

The name of the Corporation is Tower Club, Inc.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

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(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Ft. Lauderdale, State of Florida, including the sports or business club commonly known as Tower Club — Ft. Lauderdale (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, all of which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and

 

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repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies (including the Independent Director, if the Corporation is required to have an Independent Director at such time, or if there is more than one, all of the Independent

 

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Directors), institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — Tower Club, Inc.

 


 EX-3.159(B) 319 a2202241zex-3_159b.htm EX-3.159(B)

Exhibit 3.159(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

TOWER CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

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Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.160(A) 320 a2202241zex-3_160a.htm EX-3.160(A)

Exhibit 3.160(a)

 

ARTICLES OF RESTATEMENT OF

 

TOWN POINT CLUB, INC.

 

The undersigned corporation, pursuant to Title 13.1, Chapter 9, Article 11 of the Code of Virginia, hereby executes the following articles of restatement and sets forth:

 

1.                                      The name of the corporation immediately prior to restatement is Town Point Club, Inc.

 

2.                                      The restatement contains an amendment to the articles of incorporation.

 

3.                                      The text of the amended and restated articles of incorporation is attached hereto.

 

4.                                      The restatement was adopted by the corporation on November 9, 2010.

 

5.                                      The restatement was adopted by unanimous consent of the shareholders.

 

Executed in the name of the corporation by:

 

 

/s/ Ingrid Keiser

 

November 10, 2010.

 

 

 

Ingrid Keiser

 

Secretary

 

 

 

 

 

 

02347145 4

 

(telephone number (optional))

 

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AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

TOWN POINT CLUB, INC.

 

Pursuant to Section 13.1-711 of the Virginia Stock Corporation Act, the Articles of Incorporation of Town Point Club, Inc. are hereby amended and restated to read as follows:

 

FIRST.  The name of the corporation is Town Point Club, Inc. (the “Corporation”).

 

SECOND.            A.       The name of the corporation’s registered agent is Corporation Service Company.

 

B.        The registered agent is (mark appropriate box):

 

(1)                                                             an individual who is a resident of Virginia and

o                         an initial director of the corporation.

o                         a member of the Virginia State Bar.

OR

(2)                       x                       a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia.

 

THIRD.  The Corporation has been formed for the following purposes:

 

(a)                                  to manage, lease and/or operate one or more sports or business clubs, in the City of Norfolk, State of Virginia, including the sports or business club commonly known as Town Point Club (the “Business”);

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described

 

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above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Virginia Stock Corporation Act.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  [Reserved]

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Virginia,  the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  [Reserved].

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under Virginia Stock Corporation Act as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

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TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Virginia at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  [Reserved].

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH:  Corporate action required or permitted by Chapter 9 of the Virginia Stock Corporation Act may be taken without a meeting and without prior notice, if the corporate action is taken by a written consent signed by shareholders who would be entitled to vote at a meeting of holders of outstanding shares having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take the corporate action at a meeting at which all shareholders entitled to vote thereon were present and voted.

 

SIXTEENTH.  These Amended and Restated Articles of Incorporation were duly approved by the Board of Directors and the shareholders of the Corporation by unanimous written consents dated November  9, 2010 pursuant to Section 13.1-711 of the Virginia Stock Corporation Act.  These Amended and Restated Articles of Incorporation supersede the original articles of incorporation and all amendments to them.

 

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 EX-3.160(B) 321 a2202241zex-3_160b.htm EX-3.160(B)

Exhibit 3.160(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

TOWN POINT CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the Commonwealth of Virginia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken unless the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, in which event the Board of Directors shall fix a new record date. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the Commonwealth of Virginia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of

 

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Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. Except to the extent required by the Corporation’s Articles of Incorporation, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the Commonwealth of Virginia and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the Commonwealth of Virginia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

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 EX-3.161(A) 322 a2202241zex-3_161a.htm EX-3.161(A)

Exhibit 3.161(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

TREESDALE COUNTRY CLUB, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed under the name Treesdale Country Club, Inc. with the Secretary of the Commonwealth of Pennsylvania on July 1, 1993, as heretofore amended, pursuant to the Business Corporation Law of the Commonwealth of Pennsylvania, hereby execute these Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST.  The name of the corporation is Treesdale Country Club, Inc. (the “Corporation”).

 

SECOND.  The address of the Corporation’s registered office in the Commonwealth of Pennsylvania is 2704 Commerce Drive, Harrisburg, 17110.  The name of its registered agent at such address is Corporation Service Company.

 

THIRD.   The Corporation has been formed for the following purposes:

 

(a)                                  to own that certain parcel of real property, together with all improvements located thereon, currently known as Treesdale Golf & Country Club, in the City of Gibsonia, Commonwealth of Pennsylvania (the “Property”) and to operate or cause the Property to be operated;

 

(b)                                 to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                                  to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownership or possession with respect to all of the Corporation’s property;

 

(d)                                 to engage in any activities necessary to authorize, execute and deliver any agreement, guaranty, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

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(e)                                  to engage in any lawful activities and to exercise such powers permitted to corporations under the Business Corporation Law of the Commonwealth of Pennsylvania.

 

FOURTH.  The total number of shares of stock which the Corporation shall have authority to issue is 1,000.  All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH.  Reserved.

 

SIXTH.  Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                                  The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation.

 

(b)                                 The number of directors of the Corporation shall be as from time to time fixed by the Board of Directors of the Corporation in the manner provided in the By-Laws of the Corporation.

 

EIGHTH.  In furtherance and not in limitation of the powers conferred by the laws of the Commonwealth of Pennsylvania, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH.   The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH.  The Corporation shall have the power and authority to: (i) assume, guarantee, or otherwise become obligated for any obligation of any person or entity or hold out its credit as being available to satisfy the obligations or securities of others; (ii) incur, create or assume any indebtedness, including without limitation, any pledge of its assets for the benefit of any other person; or (iii) make or permit to remain outstanding any loan or advance to, or own or acquire any obligations, stock or securities of, any person, including, without limitation, any shareholder or affiliate.

 

ELEVENTH.  A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Business

 

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Corporation Law of the Commonwealth of Pennsylvania, as the same exists or may hereafter be amended.  Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH.  The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the Commonwealth of Pennsylvania at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH.  Reserved.

 

FOURTEENTH.  The Corporation shall not, without the unanimous vote of the entire Board of Directors of the Corporation, without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH.  Reserved.

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser

 

Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation.  Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.           On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.           The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.           The amendments were adopted by the shareholders.  On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock.  The number cast for the amendment was sufficient for approval by that voting group.

 

 

  Dated: November 10, 2010.

TREESDALE COUNTRY CLUB, INC.

 

 

 

 

 

By

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Its: Secretary

 

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EXHIBIT A TO CERTIFICATE

 

TEXT OF RESTATED ARTICLES

 

(to be attached)

 

6


 EX-3.161(B) 323 a2202241zex-3_161b.htm EX-3.161(B)

Exhibit 3.161(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

TREESDALE COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Pennsylvania, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 


 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

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Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders

 

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required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Pennsylvania, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

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Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Pennsylvania and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Pennsylvania whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

7

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

9


 

attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

10


 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered

 

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Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.  Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

[end]

 

14


 EX-3.162(A) 324 a2202241zex-3_162a.htm EX-3.162(A)

Exhibit 3.162(a)

 

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 12:40 PM 07/14/2005
FILED 12:40 PM 07/14/2005
SRV 050582971 – 4000336 FILE

 

STATE of DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE of FORMATION

 

·                             First: The name of the limited liability company is UMass Club Management, LLC

 

·                             Second: The address of its registered office in the State of Delaware is 2711 Centerville Rd., Suite 400 in the City of Wilmington. The name of its Registered agent at such address is Corporation Service Company

 

·                             Third: (Use this paragraph only if the company is to have a specific effective date of dissolution: “The latest date on which the limited liability company is to dissolve is                     .”)

 

·                             Fourth: (Insert any other matters the members determine to include herein.)

 

 

 

In Witness Whereof, the undersigned have executed this Certificate of Formation this 7th day of July, 2005.

 

 

 

By:

/s/ Thomas T. Henslee

 

 

Authorized Person(s)

 

 

 

 

Name:

Thomas T. Henslee

 

 

Typed or Printed

 


 EX-3.162(B) 325 a2202241zex-3_162b.htm EX-3.162(B)

Exhibit 3.162(b)

 

SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
UMASS CLUB MANAGEMENT, LLC

 

This Second Amended and Restated Limited Liability Company Agreement (together with the schedules attached hereto, this “Agreement”) of UMass Club Management, LLC (the “Company”), is entered into by CCA Mezzanine Holdco, LLC, as the sole equity member (the “Member”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

 

WHEREAS, on July 14, 2005, Thomas T. Henslee filed a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware in accordance with and pursuant to the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”).

 

WHEREAS, the Company is currently governed by that certain Amended and Restated Limited Liability Company Agreement of UMass Club Management, LLC, dated as of December 26, 2006 entered into by CCA Mezzanine Holdco, LLC as the sole member, as heretofore amended (the “Existing Agreement”).

 

WHEREAS, the Member desires to amend and restate the Existing Agreement in its entirety.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Existing Agreement is superseded, amended and restated in its entirety to read as follows:

 

Section 1.        Name.

 

The name of the limited liability company continued hereby is UMass Club Management, LLC.

 

Section 2.        Principal Business Office.

 

The principal business office of the Company shall be located at c/o ClubCorp, Inc. 3030 LBJ Freeway Suite 600 Dallas, Texas 75234-7703 or such other location as may hereafter be determined by the Member.

 

Section 3.        Registered Office.

 

The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 


 

Section 4.        Registered Agent.

 

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.

 

Section 5.        Members.

 

(a)      The mailing address of the Member is set forth on Schedule B attached hereto. The Member will continue as a member of the Company upon its execution of a counterpart signature page to this Agreement.

 

(b)      The Member may act by written consent.

 

Section 6.        Certificates.

 

Thomas T. Henslee was designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and all prior actions taken by him in connection herewith are ratified, confirmed, and approved. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business.

 

The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

 

Section 7.        Purposes. The purpose to be conducted or promoted by the Company is to engage in the following activities:

 

(a)      to manage, lease and/or operate one or more sports or business clubs, in the City of Boston, State of Massachusetts, including the sports or business club commonly known as the University of Massachusetts Club (the “Business”):

 

(b)      to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease and finance the Business including, without limitation, the grant of a security interest in such Business;

 

(c)      to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Company’s property;

 

(d)      to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the

 

2


 

filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)      to engage in any lawful activities and to exercise such powers permitted to limited liability companies under the laws of the State of Delaware.

 

Section 8.        Powers.

 

The Company, and the Board of Directors and the Officers of the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

 

Section 9.        Management.

 

(a)      Board of Directors. The business and affairs of the Company shall be managed by or under the direction of a Board of one or more Directors designated by the Member. The Member may determine at any time in its sole and absolute discretion the number of Directors to constitute the Board. The authorized number of Directors may be increased or decreased by the Member at any time in its sole and absolute discretion, upon notice to all Directors. Each Director elected, designated or appointed by the Member shall hold office until a successor is elected and qualified or until such Director’s earlier death, resignation, expulsion or removal. Directors need not be a Member. The Directors designated by the Member and currently (as of the date of this Agreement) serving are listed on Schedule C hereto.

 

(b)      Powers. The Board of Directors shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise. Subject to Section 7, the Board of Directors has the authority to bind the Company.

 

(c)      Meeting of the Board of Directors. The Board of Directors of the Company may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board may be called by the President on not less than one day’s notice to each Director by telephone, facsimile, mail, telegram or any other means of communication, and special meetings shall be called by the President or Secretary in like manner and with like notice upon the written request of any one or more of the Directors.

 

(d)      Quorum: Acts of the Board. At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board

 

3


 

or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee, as the case may be.

 

(e)      Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in meetings of the Board, or any committee, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in Person at the meeting. If all the participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

 

(f)       Committees of Directors.

 

(i)                       The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

(ii)                    In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.

 

(iii)                 Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

(g)      Compensation of Directors; Expenses. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

(h)      Removal of Directors. Unless otherwise restricted by law, any Director or the entire Board of Directors may be removed or expelled, with or without cause, at any time by the Member, and any vacancy caused by any such removal or expulsion may be filled by action of the Member.

 

(i)       Directors as Agents. To the extent of their powers set forth in this Agreement, the Directors are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers set forth in this Agreement shall bind the

 

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Company. Notwithstanding the last sentence of Section 18-402 of the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may not bind the Company.

 

Section 10.      Reserved.

 

Section 11.      Officers.

 

(a)      Officers. The Officers of the Company shall be chosen by the Board and shall consist of at least a President, a Secretary and a Treasurer. Any number of offices may be held by the same Person. The Board shall choose a President, a Secretary and a Treasurer. The Board may appoint such other Officers (including one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers) as it shall deem necessary or advisable who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The salaries of all Officers of the Company shall be fixed by or in the manner prescribed by the Board. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company shall be filled by the Board. The Officers of the Company designated by the Member and currently (as of the date of this Agreement) are listed on Schedule D hereto.

 

(b)     President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Board, shall be responsible for the general and active management of the business of the Company and shall see that all orders and resolutions of the Board are carried into effect. The President or any other Officer authorized by the President or the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or permitted by law or this Agreement to be otherwise signed and executed; (ii) where signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Company, and (iii) as otherwise permitted in Section 11(c).

 

(c)      Vice President. In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if any, shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(d)     Secretary and Assistant Secretary. The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall attend all meetings of the Board and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in

 

5


 

order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(e)      Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and to the Board, at its regular meetings or when the Board so requires, an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

 

(f)      Officers as Agents. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

 

(g)     Duties of Board and Officers. Except to the extent otherwise provided herein, each Director and Officer shall have a fiduciary duty of loyalty and care similar to that of directors and officers of business corporations organized under the General Corporation Law of the State of Delaware.

 

Section 12.      Limited Liability.

 

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Member nor any Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Director of the Company.

 

Section 13.      Capital Contributions.

 

The Member has contributed to the Company property of an agreed value as listed on Schedule B attached hereto.

 

Section 14.      Additional Contributions.

 

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Company shall revise Schedule B of this Agreement. The provisions of this Agreement, including this Section 14, are intended to benefit the Member

 

6


 

and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement.

 

Section 15.      Allocation of Profits and Losses.

 

The Company’s profits and losses shall be allocated to the Member.

 

Section 16.      Distributions.

 

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

 

Section 17.      Books and Records.

 

The Board shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Board. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company, and the Board on behalf of the Company, shall not have the right to keep confidential from the Member any information that the Board would otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

 

Section 18.      Reserved.

 

Section 19.      Other Business.

 

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

 

Section 20.      Exculpation and Indemnification.

 

(a) Neither the Member nor any Officer, Director, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “Covered Persons”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good

 

7


 

faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

 

(b)      To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 20 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

 

(c)      To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 20.

 

(d)      A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

 

(e)      To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

 

(f)       The foregoing provisions of this Section 20 shall survive any termination of this Agreement.

 

Section 21.      Assignments.

 

The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company

 

8


 

pursuant to this Section 21, and ceases to be a Member, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Without limiting the foregoing, the Member may hypothecate, pledge or assign for security purposes any part or all of its interest in the Company to any other Person and remain a Member entitled to exercise rights and receive distributions and allocations pursuant to this Agreement. In the event that any such hypothecated, pledged or assigned interest is executed upon, foreclosed or otherwise transferred by legal or equitable process, the transferee shall be admitted to the Company as a Member. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

 

Section 22.      Resignation.

 

If the Member resigns, an additional member of the Company shall be admitted to the Company, subject to Section 23, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

 

Section 23.      Admission of Additional Members.

 

One or more additional Members of the Company may be admitted to the Company with the written consent of the Member.

 

Section 24.      Dissolution.

 

(a)      The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Sections 22 and 23), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or

 

9


 

designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the Member in the Company.

 

(b)      Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

 

(c)      In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

 

(d)      The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act.

 

Section 25.      Waiver of Partition; Nature of Interest.

 

Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, the Member hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. The Member shall not have any interest in any specific assets of the Company, and the Member shall not have the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The interest of the Member in the Company is personal property.

 

Section 26.      Benefits of Agreement; No Third-Party Rights.

 

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

 

Section 27.      Severability of Provisions.

 

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

 

10

 

Section 28.              Entire Agreement.

 

This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.

 

Section 29.     Binding Agreement.

 

Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member in accordance with its terms.

 

Section 30.     Governing Law.

 

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

 

Section 31.     Amendments.

 

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member

 

Section 32.     Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

 

Section 33.     Notices.

 

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2, (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

 

Section 34.     Certification of Limited Liability Company Interests.

 

The Company hereby irrevocably elects that all limited liability company interests in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-

 

11


 

waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. § 8-101, et seq.) (the “UCC”), such provision of Article 8 of the UCC shall control. Upon the issuance of limited liability company interests to the Member in accordance with the provisions of this Agreement, the Company shall issue one or more Certificates in the name of the Member. “Certificate” means a non-negotiable certificate issued and endorsed by the Company substantially in the form of Schedule E hereto, which evidences the ownership of one or more limited liability company interests in the Company. Each Certificate shall bear the following legend: “This certificate evidences an interest in UMass Club Management, LLC. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions of Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.” This provision shall not be amended, and no such purported amendment to this provision shall be effective until all outstanding certificates have been surrendered for cancellation. The Company shall maintain books for the purpose of registering the transfer of the limited liability company interests. Notwithstanding any provision of this Agreement to the contrary, the transfer of the limited liability company interests requires delivery of an endorsed Certificate and shall be effective upon registration of such transfer in the books of the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

12


 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the 10th day of November, 2010.

 

 

MEMBER:

 

 

 

CCA MEZZANINE HOLDCO, LLC

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Name:

Ingrid Keiser

 

 

Title:

Secretary

 

Signature Page to the A&R LLC Agreement — UMass Club Management, LLC

 


 

SCHEDULE A

 

Definitions

 

A.        Definitions

 

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

 

“Act” has the meaning set forth in the preamble to this Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

 

“Agreement” means this Second Amended and Restated Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

 

“Bankruptcy” means, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

 

“Board” or “Board of Directors” means the Board of Directors of the Company.

 

“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on July 14, 2005, as amended or amended and restated from time to time.

 

“Company” means UMass Club Management, LLC, a Delaware limited liability company.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality

 

A-1


 

of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

 

“Covered Persons” has the meaning set forth in Section 20(a).

 

“Directors” means the Persons elected to the Board of Directors from time to time by the Member in their capacity as managers of the Company. A Director is hereby designated as a “manager” of the Company within the meaning of Section 18-101(10) of the Act.

 

“Member” means CCA Mezzanine Holdco, LLC, a Delaware limited liability company, as the member of the Company, and any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

 

“Officer” means an officer of the Company described in Section 11.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

 

“Property” has the meaning set forth in Section 7(a).

 

B.        Rules of Construction

 

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

 

A-2


 

SCHEDULE B

 

Member

 

Name

 

Mailing Address

 

Agreed Value of
Capital
Contribution

 

Membership
Interest

 

CCA Mezzanine Holdco, LLC

 

CCA Mezzanine Holdco, LLC
c/o ClubCorp, Inc.
3030 LBJ Freeway, Suite 600
Dallas, TX 75234-7703
Attention: Director of Finance

 

$

100

 

100

%

 

B-1


 

SCHEDULE C

 

DIRECTORS

 

1.                          Eric L. Affeldt

 

2.                          Eric C. Resnick

 

3.                          Martin J. Newburger

 

C-1


 

SCHEDULE D

 

OFFICERS

 

TITLE

 

 

 

Eric L. Affeldt

 

President

 

 

 

Curt McClellan

 

Treasurer

 

 

 

Ingrid Keiser

 

Secretary

 

D-1


 

SCHEDULE E

 

CERTIFICATE FOR UMASS CLUB MANAGEMENT, LLC

 

This Certificate has not been and will not be registered under the Securities Act of 1933 or under the securities or blue sky laws of any state. The holder of this Certificate, by its acceptance hereof, represents that it is acquiring this security for investment and not with a view to any sale or distribution hereof.

 

Certificate Number R-1

100% of Interests

 

UMass Club Management, LLC, a Delaware limited liability company (the “Company”), hereby certifies that CCA Mezzanine Holdco, LLC (the “Holder”) is the registered owner of 100% of the limited liability company interests in the Company (the “Interests”). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER       , 2010, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (THE “AGREEMENT”). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the purpose of registering the transfer of Interests.

 

This certificate evidences an interest in UMass Club Management, LLC. Each limited liability company interest in the Company shall constitute and shall remain a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by [                              ] as of the date set forth below.

 

Dated:

 

 

 

 

 

Name:

 

 

Title:

 

E-1


 

(REVERSE SIDE OF CERTIFICATE
FOR INTERESTS OF UMASS CLUB MANAGEMENT, LLC)

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                      (print or typewrite name of Transferee),                                            (insert Social Security or other taxpayer identification number of Transferee), the following specified percentage of Interests:                                                      (identify the percentage of Interests being transferred), and irrevocably constitutes and appoints                                                                             , as attorney-in-fact, to transfer the same on the books and records of the Company, with full power of substitution in the premises.

 

Dated:

 

 

Signature:

 

 

(Transferor)

 

 

Address:

 

 

 

 

 

 

E-2


 EX-3.163(A) 326 a2202241zex-3_163a.htm EX-3.163(A)

Exhibit 3.163(a)

 

ARTICLES OF RESTATEMENT

OF

UNC ALUMNI CLUB MANAGEMENT, INC.

 

Pursuant to Section 55-10-07 of the General Statues of North Carolina, the undersigned corporation hereby submits these Articles of Restatement for the purpose of integrating into one document its original articles of incorporation and all amendments thereto and also for the purpose of amending its articles of incorporation:

 

1.                          The name of the corporation is UNC Alumni Club Management, Inc. (the “Corporation”).

 

2.                          Attached hereto as Exhibit A are the Amended and Restated Articles of Incorporation, which contain amendments to the Articles of Incorporation requiring shareholder approval.

 

3.                          The Amended and Restated Articles of Incorporation of the Corporation were adopted by its shareholders on the 9th day of November, 2010, in the manner prescribed by the North Carolina Business Corporation Act.

 

4.                          The Amended and Restated Articles of Incorporation do not provide for any exchange, reclassification, or cancellation of issued shares.

 

5.                          The Amended and Restated Articles of Incorporation shall be effective upon filing with the North Carolina Secretary of State.

 

Dated the 10th day of November, 2010.

 

 

 

UNC ALUMNI CLUB MANAGEMENT, INC.

 

 

 

By:

/s/ Ingrid Keiser

 

Name: Ingrid Keiser

 

Title: Secretary

 

1


 

EXHIBIT A

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

UNC ALUMNI CLUB MANAGEMENT, INC.

 

The Corporation’s Articles of Incorporation are amended and restated in their entirety as follows:

 

FIRST. The name of the corporation is UNC Alumni Club Management, Inc. (the “Corporation”).

 

SECOND. The address of the Corporation’s registered office is 327 Hillsborough Street, Raleigh, North Carolina, 27603-1725, Wake County. The name of its registered agent at such address is Corporation Services Company. The address of the Corporation’s principal office is 3030 LBJ Freeway, Dallas TX 75234, Dallas County.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Chapel Hill and in the City of Raleigh, State of North Carolina, including the sports or business club commonly known as Carolina Club (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the North Carolina Business Corporation Act.

 

A-1


 

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of North Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to applicable law and the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the North Carolina Business Corporation Act, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Articles of Incorporation, and other provisions authorized by the laws of the State of North Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

A-2


 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH. Action required to be taken at a meeting of shareholders may be taken without a meeting and without any prior notice by shareholders having not less than the minimum number of votes that would be necessary to take the action at a meeting at which all shareholders entitled to vote were present and voted.

 

SIXTEENTH. The Corporation may conduct any transaction or transactions by electronic means, and this provision shall constitute the agreement by the Corporation, its shareholders and directors to the conduct of transactions by electronic means.

 

A-3


 EX-3.163(B) 327 a2202241zex-3_163b.htm EX-3.163(B)

Exhibit 3.163(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

UNC ALUMNI CLUB MANAGEMENT, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.        Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of North Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.        Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, or within thirty (30) days after the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose or purposes for which it is to be held. The written demand shall cease to be effective on the sixty-first day after the date thereof unless prior to such day the corporation has received effective written requests from shareholders sufficient to call the special meeting. Special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.        Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.        Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are

 


 

announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.        Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares belonging to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.        Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.        Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after eleven (11) months from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations

 

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of any share exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.        Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.        List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, not later than two (2) days after notice is given for every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting not later than two (2) days after notice is given for the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal

 

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place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.      Action By Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed (prior to the 61st day after which the first shareholder signs a consent) by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of North Carolina, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given within ten (10) days after action was taken to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting as of the record date for such action as provided in Section 1.8 above.

 

Section 1.11.      Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information

 

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as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.      Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies and representatives or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1.        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.        Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3.        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of North Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of North Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7.        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.        Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.        Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.        Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1.        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person, but no individual may act in more than one capacity where the action of two officers is required. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an

 

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attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1.        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1.        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover

 

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the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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ARTICLE VII

 

Miscellaneous

 

Section 7.1.        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3.        Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.        Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any written waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.        Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.164(A) 328 a2202241zex-3_164a.htm EX-3.164(A)

Exhibit 3.164(a)

 

AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
UNIVERSITY CLUB MANAGEMENT CO., INC.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FCBA”), University Club, Inc. (the “Corporation”), certifies that:

 

FIRST: The name of the Corporation is University Club Management Co., Inc. The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on June 21, 1996.

 

SECOND: These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation. The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010. The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD: The Articles of Incorporation of the Corporation are amended and restated in their entirety to read as follows:

 

ARTICLE I

 

The name of the Corporation is University Club Management Co., Inc.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

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(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Tallahassee, State of Florida, including the sports or business club commonly known as University Club at Florida State University (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1000 shares of $1.00 par value common stock, all of which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any such manner provided in the By-Laws of the Corporation.

 

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ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition

 

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seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

 

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — University Club Management Co., Inc.

 


 EX-3.164(B) 329 a2202241zex-3_164b.htm EX-3.164(B)

Exhibit 3.164(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

UNIVERSITY CLUB OF MANAGEMENT CO., INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.        Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.        Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.        Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.        Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.        Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.        Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.        Voting: Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.        Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.        List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.      Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.      Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.      Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.        Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3.        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of t and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.        Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.        Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.        Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

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Section 7.3.        Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.        Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.        Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

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 EX-3.165(A) 330 a2202241zex-3_165a.htm EX-3.165(A)

Exhibit 3.165(a)

 

AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
UNIVERSITY CLUB, INC.

 

Pursuant to Section 607.1007 of the Florida Business Corporation Act (the “FBCA”), University Club, Inc. (the “Corporation”), certifies that:

 

FIRST: The name of the Corporation is University Club, Inc. The original articles of incorporation were filed with the Secretary of State of the State of Florida on October 4, 1967.

 

SECOND: These Amended and Restated Articles of Incorporation contain amendments requiring the approval of the holders of a majority of the issued and outstanding shares of the common stock of the Corporation. The holder of all of the issued and outstanding shares of the Corporation’s common stock approved such amendments and the Board of Directors of the Corporation duly adopted and affirmatively approved these Amended and Restated Articles of Incorporation by unanimous written consents dated November 9, 2010. The number of votes cast for the amendments by the holders of common stock of the Corporation pursuant to the foregoing written consent was sufficient for approval. The Amended and Restated Articles of Incorporation shall be effective upon filing with the Department of State of the State of Florida.

 

THIRD: The articles of incorporation of the Corporation are amended and restated in their entirety to read as follows:

 

ARTICLE I

 

The name of the Corporation is University Club, Inc.

 

ARTICLE II

 

The principal place of business and mailing address of the Corporation is c/o ClubCorp, Inc., 3030 LBJ Freeway, Suite 600, Dallas, TX 75234-7703, Attention: Director of Finance.

 

ARTICLE III

 

The street address of the registered agent of the Corporation is 1201 Hays Street, Tallahassee, Florida 32301 and the name of the registered agent of this Corporation at that address is Corporation Service Company.

 

ARTICLE IV

 

The Corporation has been formed for the following purposes:

 

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(a)                    to manage, lease and/or operate one or more sports or business clubs, in the City of Jacksonville, State of Florida, including the sports or business club commonly known as University Club of Jacksonville (the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business or entering into any guaranties on any loan or other financing transactions as it deems appropriate;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the FBCA.

 

ARTICLE V

 

The Corporation is authorized to issue 1,000 shares of $1.00 par value common stock, all of which shall be designated “Common Stock”.

 

ARTICLE VI

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

ARTICLE VII

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

ARTICLE VIII

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Florida, the Board of Directors of the Corporation is expressly authorized to make, alter and

 

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repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE IX

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE X

 

Reserved.

 

ARTICLE XI

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the FBCA as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

ARTICLE XII

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

ARTICLE XIII

 

Reserved.

 

ARTICLE XIV

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee,

 

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trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

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IN WITNESS WHEREOF, the undersigned, duly authorized officer of the Corporation, has made and subscribed these Amended and Restated Articles of Incorporation as of the 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

Signature Page to the A&R Articles of Incorporation — University Club, Inc.

 


 EX-3.165(B) 331 a2202241zex-3_165b.htm EX-3.165(B)

Exhibit 3.165(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

UNIVERSITY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1.                        Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Florida, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.                        Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 1.3.                        Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

 

Section 1.4.                        Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 1.5.                        Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence

 


 

in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.                        Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.                        Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.                        Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at

 

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any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.                        List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.10.                  Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.                  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.                  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the

 

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meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.                        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2.                        Election; Resignation; Vacancies. At each annual meeting of the stockholders, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

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Section 2.3.                        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.                        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Florida whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.                        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6.                        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 2.7.                        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.                        Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1.                        Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.                        Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

ARTICLE IV

 

Officers

 

Section 4.1.                        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or

 

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otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.                        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.                        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.                        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.                        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any

 

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certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.                        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”, by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.                        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should

 

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be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.                        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.                        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5.                        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.                        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.                        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.                        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.                        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

10


 

Section 7.3.                        Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.                        Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.                        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.                        Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

11


 EX-3.166(A) 332 a2202241zex-3_166a.htm EX-3.166(A)

Exhibit 3.166(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
WALNUT CREEK MANAGEMENT CORPORATION

 

Walnut Creek Management Corporation (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is Walnut Creek Management Corporation.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.        The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF WALNUT CREEK MANAGEMENT CORPORATION”

 

2.        The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Walnut Creek Management Corporation. The Corporation is a for-profit corporation.

 

3.        The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Walnut Creek Country Club, in the City of Mansfield, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.        The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.        The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

Dallas, Texas, 75234

 

2


 

6.        The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.        The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.        The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.        The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.      The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.      The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of Walnut Creek Management Corporation that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

WALNUT CREEK MANAGEMENT CORPORATION

 

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
WALNUT CREEK MANAGEMENT CORPORATION

 

ARTICLE I

 

NAME

 

The name of the Corporation is Walnut Creek Management Corporation. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Walnut Creek Country Club, in the City of Mansfield, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one million (1,000,000) shares of Common Stock, with no par value.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

2


 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.166(B) 333 a2202241zex-3_166b.htm EX-3.166(B)

Exhibit 3.166(b)

 

AMENDED AND RESTATED BYLAWS
OF
WALNUT CREEK MANAGEMENT CORPORATION

 

ARTICLE I
Meetings of Shareholders

 

Section 1.1.   Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.167(A) 334 a2202241zex-3_167a.htm EX-3.167(A)

Exhibit 3.167(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

WEST PARK CLUB, INC.

 

West Park Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is West Park Club, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.         The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF WEST PARK CLUB, INC.”

 

2.         The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is West Park Club, Inc. The Corporation is a for-profit corporation.

 

3.         The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)       to hold the liquor license and manage or operate the liquor concessions for one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Westlake Club (the “Business”);

 


 

(b)       to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)       to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)       to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)       to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.         The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.         The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

6.         The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.         The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.         The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.         The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

3


 

10.       The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.       The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of West Park Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

WEST PARK CLUB, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

WEST PARK CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is West Park Club, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)       to hold the liquor license and manage or operate the liquor concessions for one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Westlake Club (the “Business”);

 

(b)      to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)       to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)      to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)       to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 


 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its

 

3


 

debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.167(B) 335 a2202241zex-3_167b.htm EX-3.167(B)

Exhibit 3.167(b)

 

AMENDED AND RESTATED BYLAWS

OF

WEST PARK CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.   Annual Meetings.   If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.   Special Meetings.   Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.   Notice of Meetings.   Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.   Adjournments.   Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.   Quorum.   Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.   Organization.   Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.   Voting; Proxies.   Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.   Fixing Date for Determination of Shareholders of Record.   In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.   List of Shareholders Entitled to Vote.   The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.   Action By Written Consent of Shareholders.   As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by Jess than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.   Inspectors of Election.   The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.   Conduct of Meetings.   The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.   Number; Qualifications.   The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.   Election; Resignation; Vacancies.   At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.   Regular Meetings.   Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.   Special Meetings.   Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.   Telephonic Meetings Permitted.   Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.   Quorum; Vote Required for Action.   At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.   Organization.   Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.   Action by Unanimous Consent of Directors.   Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.   Committees.   The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.   Committee Rules.   Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.   Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.   The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.   Powers and Duties of Executive Officers.   The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.   Appointing Attorneys and Agents; Voting Securities of Other Entities.   Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.   Certificates.   Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.   Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates.   The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VII

 

Indemnification

 

Section 6.1.   Right to Indemnification.   The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.   Prepayment of Expenses.   The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.   Claims.   If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.   Nonexclusivity of Rights.   The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.   Other Sources.   The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.   Amendment or Repeal.   Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.   Other Indemnification and Prepayment of Expenses.   This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.   Fiscal Year.   The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.   Seal.   The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.   Manner of Notice.   Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.   Waiver of Notice of Meetings of Shareholders, Directors and Committees.   Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.   Form of Records.   Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.   Amendment of Bylaws.   These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.168(A) 336 a2202241zex-3_168a.htm EX-3.168(A)

Exhibit 3.168(a)

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

WESTLAKE CITY CLUB, INC.

 

Westlake City Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is Westlake City Club, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.        The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF WESTLAKE CITY CLUB, INC.”

 

2.        The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Westlake City Club, Inc. The Corporation is a for-profit corporation.

 

3.        The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own ownership interests in West Park Club, Inc. and to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Westlake Club (collectively, the “Business”);

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.        The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.        The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

6.        The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.        The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.        The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.        The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

3


 

ARTICLE XIV

 

Reserved.

 

10.      The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.      The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE. Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR. The Amended and Restated Certificate of Formation of Westlake City Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

WESTLAKE CITY CLUB, INC.

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED

CERTIFICATE OF FORMATION OF

WESTLAKE CITY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Westlake City Club, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own ownership interests in West Park Club, Inc. and to manage, lease and/or operate one or more sports or business clubs, in the City of Houston, State of Texas, including the sports or business club commonly known as Westlake Club (collectively, the “Business”);

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Business including, without limitation, the grant of a security interest in or mortgage on such Business;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

2


 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

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ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.168(B) 337 a2202241zex-3_168b.htm EX-3.168(B)

Exhibit 3.168(b)

 

AMENDED AND RESTATED BYLAWS

OF

WESTLAKE CITY CLUB, INC.

 

ARTICLE I

Meetings of Shareholders

 

Section 1.1.  Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.  Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.  Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.  Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.  Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.  Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.  Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.  Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.  List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.  Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.  Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.  Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.  Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.  Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.  Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.  Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.  Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.  Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.  Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.  Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.  Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.  Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.  Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.  Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.  Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.  Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.  Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.  Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.  Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.  Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.  Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.  Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.  Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.  Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.169(A) 338 a2202241zex-3_169a.htm EX-3.169(A)

Exhibit 3.169(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
WILDFLOWER COUNTRY CLUB, INC.

 

Wildflower Country Club, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE. The name of the Corporation is Wildflower Country Club, Inc.

 

TWO. The Existing Charter is amended by this Restated Charter as follows:

 

1.         The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF WILDFLOWER COUNTRY CLUB, INC.”

 

2.         The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Wildflower Country Club, Inc. The Corporation is a for-profit corporation.

 

3.         The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Wildflower Country Club, in the City of Temple, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                         The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                         The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

6.                         The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                         The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                         The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                         The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

ARTICLE XIV

 

Reserved.

 

10.                   The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                   The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Wildflower Country Club, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

 

WILDFLOWER COUNTRY CLUB, INC.

 

 

 

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
WILDFLOWER COUNTRY CLUB, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Wildflower Country Club, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as Wildflower Country Club, in the City of Temple, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

Name

 

Address

Eric Affeldt

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

2


 

Eric Resnick

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

 

 

Martin Newburger

 

3030 LBJ Freeway
Dallas, Texas, 75234

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.169(B) 339 a2202241zex-3_169b.htm EX-3.169(B)

Exhibit 3.169(b)

 

AMENDED AND RESTATED BYLAWS
OF
WILDFLOWER COUNTRY CLUB, INC.

 

ARTICLE I
Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.170(A) 340 a2202241zex-3_170a.htm EX-3.170(A)

Exhibit 3.170(a)

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
WILLOW CREEK MANAGEMENT, INC.

 

Willow Creek Management, Inc. (the “Corporation”) is a Texas for-profit corporation subject to the Texas Business Organizations Code (the “TBOC”). Pursuant to Sections 3.059 and 3.060 of the TBOC, the Corporation hereby adopts this Amended and Restated Certificate of Formation of the Corporation (the “Restated Charter”), which accurately copies the Amended and Restated Articles of Incorporation of the Corporation (the “Existing Charter”) and all amendments thereto that are in effect to date, as further amended by this Restated Charter, as hereinafter set forth, and which contains no other change in any provision thereof.

 

ONE.  The name of the Corporation is Willow Creek Management, Inc.

 

TWO.  The Existing Charter is amended by this Restated Charter as follows:

 

1.                       The title of the Existing Charter is hereby amended to read in its entirety as follows:

 

“AMENDED AND RESTATED CERTIFICATE OF FORMATION OF WILLOW CREEK MANAGEMENT, INC.”

 

2.                       The Existing Charter is hereby amended by amending ARTICLE I to read in its entirety as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Willow Creek Management, Inc. The Corporation is a for-profit corporation.

 

3.                       The Existing Charter is hereby amended by amending ARTICLE III to read in its entirety as follows:

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Willow Creek Golf Club, in the City of Spring, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 


 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 

4.                       The Existing Charter is hereby amended by amending ARTICLE IV to read in its entirety as follows:

 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

5.                       The Existing Charter is hereby amended by amending ARTICLE IX to read in its entirety as follows:

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

6.                       The Existing Charter is hereby amended by amending ARTICLE XI to read in its entirety as follows:

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

7.                       The Existing Charter is hereby amended by amending ARTICLE XII to read in its entirety as follows:

 

ARTICLE XII

 

Reserved.

 

8.                       The Existing Charter is hereby amended by amending ARTICLE XIII to read in its entirety as follows:

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

 

9.                       The Existing Charter is hereby amended by amending ARTICLE XIV to read in its entirety as follows:

 

3


 

ARTICLE XIV

 

Reserved.

 

10.                 The Existing Charter is hereby amended by amending ARTICLE XV to read in its entirety as follows:

 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

11.                 The Existing Charter is hereby amended by amending ARTICLE XVI to read in its entirety as follows:

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

THREE.  Each amendment to the Existing Charter stated in Part TWO above has been made in accordance with the provisions of the TBOC. Those amendments to the Existing Charter and this Restated Charter have been approved in the manner required by the TBOC and by the governing documents of the Corporation.

 

FOUR.  The Amended and Restated Certificate of Formation of Willow Creek Management, Inc. that is set forth as Exhibit A attached hereto accurately states the text of the Existing Charter and each amendment to the Existing Charter that is in effect, as further amended by this Restated Charter. This Restated Charter does not contain any other change in the Existing Charter except for the information permitted to be omitted by Section 3.059(b) of the TBOC applicable to the Corporation.

 

4


 

IN WITNESS WHEREOF, this Restated Charter has been executed as of this 10th day of November, 2010.

 

 

WILLOW CREEK MANAGEMENT, INC.

 

 

 

 

 

By:

/s/ Ingrid Keiser

 

 

Ingrid Keiser, Secretary

 

5


 

Exhibit A

 

AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
WILLOW CREEK MANAGEMENT, INC.

 

ARTICLE I

 

NAME

 

The name of the Corporation is Willow Creek Management, Inc. The Corporation is a for-profit corporation.

 

ARTICLE II

 

PERIOD OF DURATION

 

The period of its duration is perpetual.

 

ARTICLE III

 

PURPOSE

 

The purpose for which the Corporation is organized is for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Willow Creek Golf Club, in the City of Spring, State of Texas (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the Texas Business Organizations Code.

 


 

ARTICLE IV

 

REGISTERED OFFICE

 

The street address of the registered office of the Corporation is 211 E. 7th Street, Suite 620, Austin, TX 78701, Travis County, and the name of the current registered agent of the Corporation at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.

 

ARTICLE V

 

CAPITAL STOCK

 

The Corporation is authorized to issue one class of capital stock to be designated Common Stock. The aggregate number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, $1.00 par value per share.

 

ARTICLE VI

 

CUMULATIVE VOTING

 

Cumulative voting in the election of directors is expressly prohibited.

 

ARTICLE VII

 

PREEMPTIVE RIGHTS

 

No shareholder of the Corporation will by reason of his holding shares of stock of the Corporation have any preemptive or preferential rights to purchase or subscribe to any shares of any class of stock of the Corporation, or any notes, debentures, bonds, warrants, options or other securities of the Corporation, now or hereafter to be authorized.

 

ARTICLE VIII

 

MINIMUM CAPITAL

 

The Corporation will not commence business until it has received for issuance of its shares consideration of the value of One Thousand Dollars ($1,000.00).

 

ARTICLE IX

 

BOARD OF DIRECTORS

 

The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors or in any other manner provided by the Bylaws of the Corporation. The Board of Directors currently consists of three (3) directors, and the names and addresses of the persons who are serving as directors until the next annual meeting of shareholders or until their successors are elected and qualified are:

 

 

Name

 

Address

 

 

 

 

 

 

 

Eric L. Affeldt

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

2


 

 

Eric C. Resnick

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

 

 

 

 

 

Martin J. Newburger

 

3030 LBJ Freeway

 

 

 

 

Dallas, Texas, 75234

 

 

ARTICLE X

 

BOARD POWER REGARDING BYLAWS

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Texas, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise.

 

ARTICLE XI

 

SEPARATE LEGAL EXISTENCE

 

The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

ARTICLE XII

 

Reserved.

 

ARTICLE XIII

 

CORPORATE POWER

 

The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Formation, and other provisions authorized by the laws of the State of Texas at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Formation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.

 

ARTICLE XIV

 

Reserved.

 

3


 

ARTICLE XV

 

BANKRUPTCY

 

The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

ARTICLE XVI

 

LIMITATION OF LIABILITY

 

To the fullest extent permitted by Texas statutory or decisional law, as the same exists or may hereafter be amended or interpreted, a director of the Corporation shall not be liable to the Corporation or its shareholders for any act or omission in such director’s capacity as a director. Any repeal or amendment of this Article, or adoption of any other provision of this Amended and Restated Certificate of Formation inconsistent with this Article, by the shareholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the liability to the Corporation or its shareholders of a director of the Corporation existing at the time of such repeal, amendment or adoption of an inconsistent provision.

 

ARTICLE XVII

 

WRITTEN CONSENT

 

Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if a written consent or consents, setting forth the action so taken, is signed by the holders of shares having not less than the minimum number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.

 

4


 EX-3.170(B) 341 a2202241zex-3_170b.htm EX-3.170(B)

Exhibit 3.170(b)

 

AMENDED AND RESTATED BYLAWS
OF
WILLOW CREEK MANAGEMENT, INC.

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1.                        Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Texas, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2.                        Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3.                        Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4.                        Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5.                        Quorum. Except as otherwise provided by law, the articles of incorporation or these bylaws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is

 


 

held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6.                        Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7.                        Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it conspicuously states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8.                        Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10)

 


 

days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9.                        List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10.                  Action By Written Consent of Shareholders. As long as permitted by the articles of incorporation, any action required or permitted to be taken at any annual or special meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Texas, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of shareholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those shareholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such

 


 

meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 1.11.                  Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12.                  Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter

 


 

or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

ARTICLE II

 

Board of Directors

 

Section 2.1.                        Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2.                        Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3.                        Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Texas and at such times as the Board of Directors may from time to time determine.

 

Section 2.4.                        Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Texas whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5.                        Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6.                        Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 


 

Section 2.7.                        Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8.                        Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1.                        Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2.                        Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1.                        Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the

 


 

Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2.                        Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3.                        Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1.                        Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,

 


 

transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2.                        Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification

 

Section 6.1.                        Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Mezzanine Loan Agreement, dated as of December 26, 2006, between ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT Mezzanine, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations.

 

Section 6.2.                        Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final

 


 

disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3.                        Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4.                        Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these bylaws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5.                        Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6.                        Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7.                        Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1.                        Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2.                        Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 


 

Section 7.3.                        Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4.                        Waiver of Notice of Meetings of Shareholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5.                        Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6.                        Amendment of Bylaws. These bylaws may be altered, amended or repealed, and new bylaws made, by the Board of, Directors, but the shareholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.

 


 EX-3.171(A) 342 a2202241zex-3_171a.htm EX-3.171(A)

Exhibit 3.171(a)

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF

 

WOODSIDE PLANTATION COUNTRY CLUB, INC.

 

I, the undersigned, for the purposes of amending and restating the Articles of Incorporation originally filed with the Secretary of State of the State of South Carolina on May 11, 1990 pursuant to Section 33-10-107 of the South Carolina Business Corporation Act of 1988, hereby execute this Amended and Restated Articles of Incorporation and do certify as follows:

 

FIRST. The name of the corporation is Woodside Plantation Country Club, Inc. (the “Corporation”).

 

SECOND. The address of the Corporation’s registered office in the State of South Carolina is 5000 Thurmond Mall Boulevard, Columbia, 29201. The name of its registered agent at such address is Corporation Service Company.

 

THIRD. The Corporation has been formed for the following purposes:

 

(a)                    to own that certain parcel of real property, together with all improvements located thereon, currently known as the Woodside Plantation Country Club, in the City of Aiken, State of South Carolina (the “Property”) and to operate or cause the Property to be operated;

 

(b)                   to engage in any activities necessary to purchase, acquire, own, hold, sell, endorse, transfer, assign, pledge, lease, mortgage and finance the Property including, without limitation, the grant of a security interest in or mortgage on such Property;

 

(c)                    to engage in any activities necessary to hold, receive, exchange, otherwise dispose of and otherwise deal in and exercise all rights, powers, privileges, and all other incidents of ownerships or possession with respect to all of the Corporation’s property;

 

(d)                   to engage in any activities necessary to authorize, execute and deliver any agreement, notice or document in connection with the activities described above, including the filing of any notices, applications and other documents necessary or advisable to comply with any applicable laws, statutes, rules and regulations; and

 

(e)                    to engage in any lawful activities and to exercise such powers permitted to corporations under the South Carolina Business Corporation Act of 1988.

 

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FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 1,000. All such shares are to be Voting Common Stock, par value of $1.00 per share, and are to be of one class.

 

FIFTH. Reserved.

 

SIXTH. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. Directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Shareholders do not have a right to cumulate their votes for directors.

 

SEVENTH.

 

(a)                    The business and affairs of the Corporation shall be managed by or under the direction of the Corporation’s Board of Directors.

 

(b)                   The number of directors of the Corporation shall be as from time to time fixed by the Corporation’s Board of Directors, or in any other manner provided in the By-Laws of the Corporation.

 

EIGHTH. In furtherance and not in limitation of the powers conferred by the laws of the State of South Carolina, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the shareholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

NINTH. The Corporation shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other person or entity, take all reasonable steps to continue its identity as a separate legal entity, and make it apparent to third persons that the Corporation is an entity with assets and liabilities distinct from those of any other person or entity.

 

TENTH. Reserved.

 

ELEVENTH. A director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the South Carolina Business Corporation Act of 1988 as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

TWELFTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and other provisions authorized by the laws of the State of South Carolina at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated

 

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Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article.

 

THIRTEENTH. Reserved.

 

FOURTEENTH. The Corporation shall not, without the unanimous vote of the entire Board of Directors without any vacancies, institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or seek or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of this Corporation or a substantial part of its property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any corporate action in furtherance of any such action; or take or consent to any of the foregoing actions with respect to any subsidiary of the Corporation.

 

FIFTEENTH. Reserved.

 

* * *

 

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IN WITNESS WHEREOF, the undersigned has signed these Amended and Restated Articles of Incorporation this 10th day of November, 2010.

 

 

 

/s/ Ingrid Keiser

 

Ingrid Keiser
Secretary

 

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CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

The attached Amended and Restated Articles of Incorporation contain one or more amendments to the corporation’s Articles of Incorporation. Pursuant to Section 33-10-107(d)*(2), the following information concerning the amendments is hereby submitted:

 

1.          On November 9, 2010, the corporation adopted the following amendments to its articles of incorporation:

 

The Articles of Incorporation, as previously amended, were amended in their entirety to read as set forth on Exhibit A hereto.

 

2.          The amendments do not provide for the exchange, reclassification or cancellation of issued shares.

 

3.          The amendments were adopted by the shareholders. On the date of the adoption of the amendments, 1,000 undisputed shares were cast for the amendment by the holders of common stock. The number cast for the amendment was sufficient for approval by that voting group.

 

 

Dated: November 10, 2010.

WOODSIDE PLANTATION COUNTRY CLUB, INC.

 

 

 

By

/s/ Ingrid Keiser

 

Name:  Ingrid Keiser

 

Its:  Secretary

 

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 EX-3.171(B) 343 a2202241zex-3_171b.htm EX-3.171(B)

Exhibit 3.171(b)

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

WOODSIDE PLANTATION COUNTRY CLUB, INC.

 

 

ARTICLE I

 

Meetings of Shareholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of shareholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of South Carolina, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

 

Section 1.2. Special Meetings. Special meetings of shareholders for any purpose or purposes may be called at any time by (i) the Board of Directors; or (ii) by the shareholders constituting at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the special meeting provided that such shareholders sign, date, and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose for which it is to be held. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 1.3. Notice of Meetings. Whenever shareholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the articles of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the shareholder at such shareholder’s address as it appears on the records of the corporation.

 

Section 1.4. Adjournments. Any meeting of shareholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a

 


 

new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the articles of incorporation or these by-laws, at each meeting of shareholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the shareholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the articles of incorporation, each shareholder entitled to vote at any meeting of shareholders shall be entitled to one vote for each share of stock held by such shareholder which has voting power upon the matter in question. Each shareholder entitled to vote at a meeting of shareholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A shareholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of shareholders need not be by written ballot. At all meetings of shareholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the shareholders at a meeting at which a quorum is present shall, unless otherwise provided by the articles of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a

 

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majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

Section 1.8. Fixing Date for Determination of Shareholders of Record. In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of shareholders entitled to vote at any meeting of shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

Section 1.9. List of Shareholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, in the timeframe set forth below, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting on the date on which notice of the meeting is given (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of shareholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only

 

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evidence as to who are the shareholders entitled to examine the list of shareholders required by this Section 1.9 or to vote in person or by proxy at any meeting of shareholders.

 

Section 1.10. Action By Unanimous Written Consent of Shareholders. Unless otherwise restricted by the articles of incorporation, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to nonvoting shareholders, the corporation shall give the nonvoting shareholders written notice of the proposed action at least ten (10) days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of shareholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of shareholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent

 

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with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of shareholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be shareholders.

 

Section 2.2. Election; Resignation; Vacancies. At each annual meeting of the shareholders, the shareholders shall elect directors each of whom shall hold office for a term expiring at the next annual meeting of shareholders or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the articles of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of shareholders, and each director so elected shall hold office until the next annual meeting of shareholders or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of South Carolina and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of South Carolina whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least two (2) days before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the articles of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the articles of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

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ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

 

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ARTICLE IV

 

Officers

 

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of shareholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

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ARTICLE V

 

Stock

 

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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ARTICLE VI

 

Indemnification

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees and expenses) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations contemplated by the Loan Agreement, dated as of December 26, 2006, between ClubCorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC, as Borrower, and Citigroup Global Markets Realty Corp. (individually and as lead arranger and administrative agent for itself and certain co-lenders), as Lender, and all documents and certificates contemplated thereby or delivered in connection therewith and shall not constitute a claim against the corporation in the event that cash flow is insufficient to pay such obligations. 1

 

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this

 

11


 

Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the articles of incorporation, these by-laws, agreement, vote of shareholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

12


 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted or required by applicable law, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Shareholders. Directors and Committees. A person entitled to notice of a meeting may waive any notice required by applicable law, the articles of incorporation, or these by-laws before or after the date and time stated in the notice of the meeting if a written waiver signed by the person entitled to the notice of the meeting is delivered to the corporation for filing in the minutes or corporate records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the shareholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, except as prohibited by law, but the shareholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

 

13


 EX-4.1 344 a2202241zex-4_1.htm EX-4.1

Exhibit 4.1

 

 

 

 

CLUBCORP CLUB OPERATIONS, INC.

 

10% SENIOR NOTES DUE 2018

 

 

INDENTURE

 

DATED AS OF NOVEMBER 30, 2010

 

 

WILMINGTON TRUST FSB

as Trustee

 

 

 

 


 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

 

ARTICLE 1.

DEFINITIONS AND INCORPORATION BY REFERENCE

1

 

 

 

 

 

Section 1.01.

 

Definitions

1

 

 

 

 

 

 

Section 1.02.

 

Other Definitions

29

 

 

 

 

 

 

Section 1.03.

 

Incorporation by Reference of Trust Indenture Act

29

 

 

 

 

 

 

Section 1.04.

 

Rules of Construction

30

 

 

 

 

ARTICLE 2.

THE NOTES

30

 

 

 

 

 

Section 2.01.

 

Form and Dating

30

 

 

 

 

 

 

Section 2.02.

 

Execution and Authentication

32

 

 

 

 

 

 

Section 2.03.

 

Registrar and Paying Agent

32

 

 

 

 

 

 

Section 2.04.

 

Paying Agent to Hold Money in Trust

33

 

 

 

 

 

 

Section 2.05.

 

Holder Lists

33

 

 

 

 

 

 

Section 2.06.

 

Transfer and Exchange

33

 

 

 

 

 

 

Section 2.07.

 

Replacement Notes

45

 

 

 

 

 

 

Section 2.08.

 

Outstanding Notes

45

 

 

 

 

 

 

Section 2.09.

 

Treasury Notes

46

 

 

 

 

 

 

Section 2.10.

 

Temporary Notes

46

 

 

 

 

 

 

Section 2.11.

 

Cancellation

46

 

 

 

 

 

 

Section 2.12.

 

Payment of Interest; Defaulted Interest

46

 

 

 

 

 

 

Section 2.13.

 

CUSIP or ISIN Numbers

47

 

 

 

 

 

 

Section 2.14.

 

Additional Interest

47

 

 

 

 

 

 

Section 2.15.

 

Issuance of Additional Notes

47

 

 

 

 

 

 

Section 2.16.

 

Record Date

47

 

 

 

 

ARTICLE 3.

REDEMPTION AND PREPAYMENT

48

 

 

 

 

 

Section 3.01.

 

Notices to Trustee

48

 

 

 

 

 

 

Section 3.02.

 

Selection of Notes to be Redeemed or Purchased

48

 

 

 

 

 

 

Section 3.03.

 

Notice of Redemption

48

 

 

 

 

 

 

Section 3.04.

 

Effect of Notice of Redemption

49

 

 

 

 

 

 

Section 3.05.

 

Deposit of Redemption Price

49

 

 

 

 

 

 

Section 3.06.

 

Notes Redeemed in Part

50

 

 

 

 

 

 

Section 3.07.

 

Optional Redemption

50

 

 

 

 

 

 

Section 3.08.

 

Mandatory Redemption

50

 

 

 

 

 

 

Section 3.09.

 

Offer To Purchase

51

 

 

 

 

ARTICLE 4.

COVENANTS

53

 

 

 

 

 

Section 4.01.

 

Payment of Notes

53

 

i


 

TABLE OF CONTENTS

(continued)

 

 

 

 

 

Page

 

 

 

 

 

 

Section 4.02.

 

Maintenance of Office or Agency

53

 

 

 

 

 

 

Section 4.03.

 

Reports

53

 

 

 

 

 

 

Section 4.04.

 

Compliance Certificate

54

 

 

 

 

 

 

Section 4.05.

 

Taxes

55

 

 

 

 

 

 

Section 4.06.

 

Stay, Extension and Usury Laws

55

 

 

 

 

 

 

Section 4.07.

 

Corporate Existence

55

 

 

 

 

 

 

Section 4.08.

 

Payments for Consent

55

 

 

 

 

 

 

Section 4.09.

 

Incurrence of Indebtedness and Issuance of Preferred Stock

55

 

 

 

 

 

 

Section 4.10.

 

Restricted Payments

60

 

 

 

 

 

 

Section 4.11.

 

Liens

66

 

 

 

 

 

 

Section 4.12.

 

Asset Sales

66

 

 

 

 

 

 

Section 4.13.

 

Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

67

 

 

 

 

 

 

Section 4.14.

 

Transactions with Affiliates

69

 

 

 

 

 

 

Section 4.15.

 

Designation of Restricted and Unrestricted Subsidiaries

72

 

 

 

 

 

 

Section 4.16.

 

Repurchase at the Option of Holders Upon a Change of Control

72

 

 

 

 

 

 

Section 4.17.

 

Limitation on Incurrence of Guarantees of Indebtedness

73

 

 

 

 

ARTICLE 5.

SUCCESSORS

73

 

 

 

 

 

Section 5.01.

 

Merger, Consolidation and Sale of Assets

73

 

 

 

 

 

 

Section 5.02.

 

Successor Corporation Substituted

74

 

 

 

 

ARTICLE 6.

DEFAULTS AND REMEDIES

74

 

 

 

 

 

Section 6.01.

 

Events of Default

74

 

 

 

 

 

 

Section 6.02.

 

Acceleration

76

 

 

 

 

 

 

Section 6.03.

 

Other Remedies

76

 

 

 

 

 

 

Section 6.04.

 

Waiver of Defaults

76

 

 

 

 

 

 

Section 6.05.

 

Control by Majority

76

 

 

 

 

 

 

Section 6.06.

 

Limitation on Suits

77

 

 

 

 

 

 

Section 6.07.

 

Rights of Holders to Receive Payment

77

 

 

 

 

 

 

Section 6.08.

 

Collection Suit by Trustee

77

 

 

 

 

 

 

Section 6.09.

 

Trustee May File Proofs of Claim

77

 

 

 

 

 

 

Section 6.10.

 

Priorities

78

 

 

 

 

 

 

Section 6.11.

 

Undertaking for Costs

78

 

 

 

 

ARTICLE 7.

TRUSTEE

78

 

 

 

 

 

Section 7.01.

 

Duties of Trustee

78

 

ii


 

TABLE OF CONTENTS

(continued)

 

 

 

 

 

Page

 

 

 

 

 

 

Section 7.02.

 

Rights of Trustee

79

 

 

 

 

 

 

Section 7.03.

 

Individual Rights of Trustee

80

 

 

 

 

 

 

Section 7.04.

 

Trustee’s Disclaimer

80

 

 

 

 

 

 

Section 7.05.

 

Notice of Defaults

80

 

 

 

 

 

 

Section 7.06.

 

Reports by Trustee to Holders

81

 

 

 

 

 

 

Section 7.07.

 

Compensation and Indemnity

81

 

 

 

 

 

 

Section 7.08.

 

Replacement of Trustee

82

 

 

 

 

 

 

Section 7.09.

 

Successor Trustee by Merger, etc.

83

 

 

 

 

 

 

Section 7.10.

 

Eligibility; Disqualification

83

 

 

 

 

 

 

Section 7.11.

 

Preferential Collection of Claims Against Company

83

 

 

 

 

ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

83

 

 

 

 

 

Section 8.01.

 

Option to Effect Legal Defeasance or Covenant Defeasance

83

 

 

 

 

 

 

Section 8.02.

 

Legal Defeasance and Discharge

83

 

 

 

 

 

 

Section 8.03.

 

Covenant Defeasance

84

 

 

 

 

 

 

Section 8.04.

 

Conditions to Legal or Covenant Defeasance

84

 

 

 

 

 

 

Section 8.05.

 

Deposited Cash and U.S. Government Securities to be Held in Trust; Other Miscellaneous Provisions

85

 

 

 

 

 

 

Section 8.06.

 

Repayment to Company

86

 

 

 

 

 

 

Section 8.07.

 

Reinstatement

86

 

 

 

 

ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER

86

 

 

 

 

 

Section 9.01.

 

Without Consent of Holders of Notes

86

 

 

 

 

 

 

Section 9.02.

 

With Consent of Holders of Notes

87

 

 

 

 

 

 

Section 9.03.

 

Compliance with Trust Indenture Act

88

 

 

 

 

 

 

Section 9.04.

 

Revocation and Effect of Consents

88

 

 

 

 

 

 

Section 9.05.

 

Notation on or Exchange of Notes

89

 

 

 

 

 

 

Section 9.06.

 

Trustee to Sign Amendments, etc.

89

 

 

 

 

ARTICLE 10.

GUARANTEES

89

 

 

 

 

 

Section 10.01.

 

Guarantee

89

 

 

 

 

 

 

Section 10.02.

 

Limitation on Guarantor Liability

90

 

 

 

 

 

 

Section 10.03.

 

Execution and Delivery of Guarantee

91

 

 

 

 

 

 

Section 10.04.

 

Guarantors May Consolidate, etc., on Certain Terms

91

 

 

 

 

 

 

Section 10.05.

 

Releases

92

 

 

 

 

ARTICLE 11.

SATISFACTION AND DISCHARGE

93

 

 

 

 

 

Section 11.01.

 

Satisfaction and Discharge

93

 

iii


 

TABLE OF CONTENTS

(continued)

 

 

 

 

 

Page

 

 

 

 

 

 

Section 11.02.

 

Deposited Cash and U.S. Government Securities to be Held in Trust; Other Miscellaneous Provisions

94

 

 

 

 

 

 

Section 11.03.

 

Repayment to Company

94

 

 

 

 

ARTICLE 12.

MISCELLANEOUS

94

 

 

 

 

 

Section 12.01.

 

Trust Indenture Act Controls

94

 

 

 

 

 

 

Section 12.02.

 

Notices

94

 

 

 

 

 

 

Section 12.03.

 

Communication by Holders of Notes with Other Holders of Notes

95

 

 

 

 

 

 

Section 12.04.

 

Certificate and Opinion as to Conditions Precedent

95

 

 

 

 

 

 

Section 12.05.

 

Statements Required in Certificate or Opinion

96

 

 

 

 

 

 

Section 12.06.

 

Rules by Trustee and Agents

96

 

 

 

 

 

 

Section 12.07.

 

No Personal Liability of Directors, Officers, Employees and Stockholders

96

 

 

 

 

 

 

Section 12.08.

 

Governing Law; Waiver of Jury Trial

96

 

 

 

 

 

 

Section 12.09.

 

No Adverse Interpretation of Other Agreements

97

 

 

 

 

 

 

Section 12.10.

 

Successors

97

 

 

 

 

 

 

Section 12.11.

 

Severability

97

 

 

 

 

 

 

Section 12.12.

 

Counterpart Originals

97

 

 

 

 

 

 

Section 12.13.

 

Table of Contents, Headings, etc.

97

 

 

 

 

 

 

Section 12.14.

 

Force Majeure

97

 

EXHIBIT A

Form of Note

 

EXHIBIT B

Form of Certificate of Transfer

 

EXHIBIT C

Form of Certificate of Exchange

 

EXHIBIT D

Form of Supplemental Indenture to be Delivered by Subsequent Guarantors

 

 

iv


 

This INDENTURE dated as of November 30, 2010, is by and among CLUBCORP CLUB OPERATIONS, INC., a Delaware corporation, each Guarantor listed on the signature pages hereto, and WILMINGTON TRUST FSB, as trustee (the “Trustee”).

 

The Company, each Guarantor and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the 10% Senior Notes due 2018 (the “Notes”) issued under this Indenture:

 

ARTICLE 1.

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01.                Definitions.

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

“144A Global Note” means a Global Note in the form of Exhibit A bearing the Global Note Legend and the Private Placement Legend and deposited with and registered in the name of the Depositary or its nominee issued in a denomination equal to the outstanding principal amount of the Notes sold for initial resale in reliance on Rule 144A.

 

“Acquired Debt” means, with respect to any specified Person:

 

(1)   Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

 

(2)   Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

“Additional Interest” means all Additional Interest, as defined in and then owing pursuant to the Registration Rights Agreement.

 

“Additional Notes” means any Notes (other than Initial Notes, Exchange Notes and Notes issued under Sections 2.06, 2.07, 2.10 and 3.06) issued under this Indenture in accordance with Sections 2.02, 2.15 and 4.09, as part of the same series as the Initial Notes or as an additional series.

 

“Adjusted EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period,

 

(1)   increased (without duplication) by:

 

(a)           provision for taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus

 

(b)           Fixed Charges of such Person for such period (including (x) net losses or Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses 1(t) through 1(z) thereof, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus

 


 

(c)           Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus

 

(d)           any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the offering of the Notes and the Credit Facilities and (ii) any amendment or other modification of the Notes, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

 

(e)           the amount of any restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Issue Date and costs related to the closure and/or consolidation of facilities; plus

 

(f)            any other non-cash charges, including any write offs or write downs, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

 

(g)           the amount of any non-controlling interest income or expense consisting of Subsidiary income or loss attributable to minority equity interests of third parties in any non-Wholly Owned Restricted Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus

 

(h)           the amount of management, monitoring, consulting and advisory fees and related expenses paid in such period to the Investors to the extent otherwise permitted under Section 4.14; plus

 

(i)            the amount of net cost-savings projected by the Company in good faith to be realized as a result of specified actions initiated or to be taken on or prior to the date that is 12 months after any acquisition, merger or operational change (calculated on a pro forma basis as though such cost-savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost-savings are reasonably identifiable and quantifiable, (y) no cost-savings shall be added pursuant to this clause (i) to the extent duplicative of any expenses or charges relating to such cost-savings that are included in clause (e) above, and (z) the aggregate amount of cost-savings added pursuant to this clause (i) shall not exceed in any Four Quarter Period (A) $3.0 million in connection with any acquisition of a club and (B) $10.0 million for such Four Quarter Period (which adjustments may be incremental to pro forma adjustments made pursuant to the second paragraph of the definition of “Fixed Charge Coverage Ratio”); plus

 

(j)            the amount of deferred revenue relating to initiation deposits and fees that was written off in connection with the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006 which, but for such write-off, would have been recognized as revenue in such period; plus

 

(k)           any costs or expense incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest of the Company (other than Disqualified Stock) solely

 

2


 

to the extent that such net cash proceeds are excluded from the calculation set forth in clause (3) of Section 4.10(a); plus

 

(l)            the amount of expenses relating to payments made to option holders of any direct or indirect parent company of the Company or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Indenture;

 

(m)          fees and expenses of third parties retained by management in connection with preparing the Company to comply with the public filing requirements of the Commission and the Sarbanes-Oxley Act of 2002, as amended, and related rules and regulations, to the extent deducted in computing Consolidated Net Income; and

 

(n)           any state or local property taxes, regulatory expenses or other charges directly resulting from (i) the Reorganization Transactions described in the offering memorandum relating to the initial offering of the Notes or (ii) the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006.

 

(2)   decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted EBITDA in any prior period.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.

 

“Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.

 

“Applicable Procedures” means, with respect to any transfer, redemption or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer, redemption or exchange.

 

“Asset Sale” means:

 

(1)   the sale, conveyance or other disposition of any property or assets of the Company or any of its Restricted Subsidiaries; or

 

(2)   the issuance or sale of Equity Interests by any of the Company’s Restricted Subsidiaries (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.09.

 

Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:

 

(a)           any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business;

 

(b)           the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to Section 5.01 or any disposition that constitutes a Change of Control pursuant to this Indenture;

 

3


 

(c)           the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 4.10;

 

(d)           any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value of less than $7.5 million;

 

(e)           any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Company to the Company or by the Company or a Restricted Subsidiary of the Company to another Restricted Subsidiary of the Company;

 

(f)            to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, any exchange of like property (excluding any boot thereon);

 

(g)           the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;

 

(h)           any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

 

(i)            foreclosures, condemnation or any similar action on assets;

 

(j)            any financing transaction with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back Transactions and asset securitizations permitted by this Indenture;

 

(k)           any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;

 

(l)            any disposition of assets or issuance or sale of Equity Interests of any Dormant Subsidiary; and

 

(m)          any disposition of property or assets in connection with the Reorganization Transactions.

 

“Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

 

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief of debtors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.

 

“Board of Directors” means:

 

(1)   with respect to a corporation, the board of directors of the corporation or any committee duly

 

4


 

designated thereby;

 

(2)   with respect to a partnership, the Board of Directors of the general partner of the partnership; and

 

(3)   with respect to any other Person, the board or committee of such Person serving a similar function.

 

“Board Resolution” of a Person means a copy of a resolution certified by the secretary or an assistant secretary (or individual performing comparable duties) of the applicable Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“Business Day” means each day which is not a Legal Holiday.

 

“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.

 

“Capital Stock” means:

 

(1)   in the case of a corporation, corporate stock;

 

(2)   in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(3)   in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(4)   any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.

 

“Cash Equivalents” means:

 

(1)   United States dollars;

 

(2)           (a) euro, or any national currency of any participating member state in the EMU; or

 

(b) in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by them from time to time in the ordinary course of business;

 

(3)   securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof, the securities of which are unconditionally guaranteed as a full faith and credit obligation of the U.S. government, with maturities of 12 months or less from the date of acquisition;

 

(4)   certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than

 

5


 

$500.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;

 

(5)   repurchase obligations for underlying securities of the types described in clauses (3) and (4) entered into with any financial institution meeting the qualifications specified in clause (4) above;

 

(6)   commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case maturing within 12 months after the date of creation thereof;

 

(7)   marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof;

 

(8)   investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;

 

(9)   readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition;

 

(10) Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 12 months or less from the date of acquisition; and

 

(11) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s.

 

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

 

“Change of Control” means the occurrence of any of the following:

 

(1)   the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person other than a Permitted Holder;

 

(2)   the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors (except by reason of temporary vacancies created by the death, incapacity or the unscheduled resignation of a director, prior to the replacement of such director); or

 

(3)   the Company becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of, (i) prior to the consummation of an underwritten public Equity Offering by the Company or any direct or indirect parent company of the Company, 35% or more of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Company, or (ii) subsequent to the consummation of an underwritten public Equity Offering by the Company or any direct

 

6


 

or indirect parent company of the Company, 50% or more of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Company.

 

“Clearstream” means Clearstream Banking S.A. and any successor thereto.

 

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

 

“Commission” means the Securities and Exchange Commission.

 

“Company” means ClubCorp Club Operations, Inc., and any successor thereto.

 

“Consolidated Depreciation and Amortization Expense” means with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees and Capitalized Software Expenditures of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

 

“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:

 

(1)   consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, other than with respect to Indebtedness borrowed under the Credit Agreement or the Notes, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (t) interest expense relating to membership deposit liabilities, (u) accretion or accrual of discounted liabilities not constituting Indebtedness, (v) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (w) any Additional Interest and any comparable “additional interest” with respect to other securities, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and original issue discount with respect to Indebtedness borrowed under the Credit Agreement, (y) any expensing of bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any receivables facility); plus

 

(2)   consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

 

(3)   interest income for such period.

 

For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

 

“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided, however, that without duplication:

 

(1)   any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, severance, relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded,

 

7


 

(2)   the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,

 

(3)   any after-tax effect of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,

 

(4)   any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Company, shall be excluded,

 

(5)   the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Company shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period,

 

(6)   solely for the purpose of determining the amount available for Restricted Payments under clause (3)(a) of Section 4.10(a), the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived, provided that Consolidated Net Income of the Company will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to the Company or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,

 

(7)   effects of adjustments (including the effects of such adjustments pushed down to the Company and its Restricted Subsidiaries) in the property and equipment, software and other intangible assets, deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any consummated acquisition after the Issue Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,

 

(8)   any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded,

 

(9)   any impairment charge, asset write-off or write-down, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded,

 

(10) any (i) non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights and (ii) income (loss) attributable to deferred compensation plans or trusts shall be excluded,

 

(11) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,

 

(12) accruals and reserves that are established, adjusted or changed as a result of the adoption or modification of accounting policies, shall be excluded,

 

8


 

(13) to the extent covered by insurance and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption shall be excluded,

 

(14) any net gain or loss resulting in such period from Hedging Obligations and the application of Financial Accounting Standards Codification No. 815—Derivatives and Hedging shall be excluded, and

 

(15) any net gain or loss resulting in such period from currency transaction or translation gain or losses related to currency remeasurements (including any net loss or gain resulting from hedge agreements for currency exchange risk) shall be excluded.

 

Notwithstanding the foregoing, for the purpose of Section 4.10 only (other than Section 4.10(a)(3)(d)), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Company and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Company and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by the Company or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under Section 4.10(a)(3)(d).

 

“Consolidated Secured Debt Ratio” as of any date of determination means, the ratio of (1) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries (other than Hedging Obligations) that is secured by Liens as of the end of the most recent fiscal period for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur to (2) the Company’s Adjusted EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Adjusted EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.  For purposes of this definition, Obligations in respect of Capitalized Lease Obligations shall not be considered secured by Liens.

 

“Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, all obligations relating to liabilities representing membership deposits) and (2) the aggregate amount of all outstanding Disqualified Stock of the Company and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Company’s Board of Directors.

 

“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,

 

(1)   to purchase any such primary obligation or any property constituting direct or indirect security

 

9

 

therefor,

 

(2)   to advance or supply funds

 

(a) for the purchase or payment of any such primary obligation, or

 

(b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or

 

(3)   to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

 

“Continuing Director” means during any period of 12 consecutive months beginning after the Issue Date, individuals who at the beginning of any such 12-month period constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Company was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved, including new directors designated in or provided for in an agreement regarding the merger, consolidation or sale, transfer or other conveyance, of all or substantially all of the assets of the Company or any of its direct or indirect parent companies, if such agreement was approved by a vote of such majority of directors).

 

“Controlled Investment Affiliate” means, as to any Person, any other Person, other than KSL, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Company and/or other companies.

 

“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Article 12, or such other address as to which the Trustee may give notice to the Company.

 

“Credit Agreement” means that certain Credit Agreement to be dated on or about November 30, 2010, among CCA Club Operations Holdings, LLC, the Company, as borrower, the other borrowers party thereto, Citibank, N.A., as administrative agent, and the lenders party thereto from time to time, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, modified, renewed, refunded, replaced or refinanced from time to time.

 

“Credit Facilities” means, with respect to the Company or any of its Restricted Subsidiaries, one or more debt facilities, including the Credit Agreement, or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.09) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.

 

“Custodian” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03(c) as Custodian with respect to the Notes, and any and all successors thereto appointed as custodian hereunder and having become such pursuant to the applicable provisions of this Indenture.

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

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“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 or 2.10, in substantially the form of Exhibit A except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03(b) as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provisions of this Indenture.

 

“Designated Non-cash Consideration” means the fair market value of non-cash consideration received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an officer’s certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Company, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or repurchase of or collection or payment on such Designated Non-cash Consideration.

 

“Designated Preferred Stock” means Preferred Stock of the Company or any parent corporation thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Company or the applicable parent corporation thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.10(a).

 

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction and any sale of Equity Interests, but excluding any issuance by such Person of its own Equity Interests), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

 

“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

“Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S.

 

“Domestic Subsidiary” means any Restricted Subsidiary that was formed under the laws of the United States or any state thereof or the District of Columbia.

 

“Dormant Subsidiary” shall have the same meaning as defined in the Credit Agreement on the Issue Date.

 

“EMU” means economic and monetary union as contemplated in the Treaty on European Union.

 

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“Equity Offering” means any public or private sale of common stock or Preferred Stock of the

 

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Company or any of its direct or indirect parent companies (excluding Disqualified Stock), other than:

 

(1)   public offerings with respect to the Company’s or any direct or indirect parent company’s common stock registered on Form S-8;

 

(2)   issuances to any Subsidiary of the Company; and

 

(3)   any such public or private sale that constitutes an Excluded Contribution.

 

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any successor thereto.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Exchange Notes” means notes issued in exchange for the Initial Notes or any Additional Notes pursuant to a Registration Rights Agreement.

 

“Exchange Offer” has the meaning set forth in a Registration Rights Agreement relating to an exchange of Notes registered under the Securities Act for Notes not so registered.

 

“Exchange Offer Registration Statement” has the meaning set forth in a Registration Rights Agreement.

 

“Excluded Contribution” means net cash proceeds, marketable securities or Qualified Proceeds received by the Company from:

 

(1)   contributions to its common equity capital; and

 

(2)   the sale (other than to a Subsidiary of the Company or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Company) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Company;

 

in each case designated as Excluded Contributions pursuant to an officer’s certificate executed by the principal financial officer of the Company on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (3) of Section 4.10(a).

 

“Existing Indebtedness” means the aggregate principal amount of Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Credit Agreement) in existence on the Issue Date.

 

“Financing Unrestricted Subsidiary” means any Unrestricted Subsidiary that owns assets or property (other than cash) that were owned by the Company or its Subsidiaries on the Issue Date.

 

“Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of Adjusted EBITDA of such Person for such period to the Fixed Charges of such Person for such period.  In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable Four Quarter Period.

 

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For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the applicable Four Quarter Period or subsequent to such reference period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in Adjusted EBITDA resulting therefrom) had occurred on the first day of the applicable Four Quarter Period.  If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the applicable Four Quarter Period.

 

For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company.  If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness).  Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.  For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition.  Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.

 

“Fixed Charges” means, with respect to any Person for any period, the sum, without duplication, of:

 

(1)   Consolidated Interest Expense of such Person for such period;

 

(2)   all cash dividends or other distributions paid (excluding items eliminated in consolidation) during such period on any series of Preferred Stock issued by such Person; and

 

(3)   all cash dividends or other distributions paid (excluding items eliminated in consolidation) during such period on any series of Disqualified Stock issued by such Person.

 

“Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof and any Restricted Subsidiary of such Foreign Subsidiary.

 

“Four Quarter Period” means the most recently ended four fiscal quarters of the Company for which internal financial statements are available immediately preceding the date for which the Fixed Charge Coverage Ratio is being calculated.

 

“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date.

 

“Global Note Legend” means the legend set forth in Section 2.06(g)(ii), which is required to be placed on all Global Notes issued under this Indenture.

 

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“Global Notes” means the global Notes in the form of Exhibit A issued in accordance with Article 2.

 

“guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.  The term “guarantee” used as a verb has a corresponding meaning.

 

“Guarantors” means:

 

(1)   each Wholly Owned Restricted Subsidiary of the Company that has guaranteed the Company’s Obligations under the Credit Agreement and that is a party to this Indenture on the date of this Indenture; and

 

(2)   any other subsidiary that executes a Note Guarantee in accordance with the provisions of this Indenture;

 

and their respective successors and assigns.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under any interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies.

 

“Holder” means the Person in whose name a Note is registered on the registrar’s books.

 

“Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the fore-going individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any do-nor-advised fund of which any such individual is the donor.

 

“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:

 

(1)   in respect of borrowed money;

 

(2)   evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)   in respect of banker’s acceptances;

 

(4)   representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligations until, after 30 days of becoming due and payable, has not been paid and such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP; or

 

(5)   representing any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP, provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in

 

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the ordinary course of business, (b) obligations under or in respect of receivables facilities or (c) liabilities representing membership deposits.  In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person other than by endorsement of negotiable instruments for collection in the ordinary course of business.

 

The amount of any Indebtedness outstanding as of any date shall be:

 

(1)   the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

 

(2)   the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.

 

“Indenture” means this instrument, as originally executed or as it may from time to time be supplemented or amended in accordance with Article 9.

 

“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.

 

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

 

“Initial Notes” means $415,000,000 aggregate principal amount of Notes issued under this Indenture on the date hereof.

 

“Interest Payment Dates” shall have the meaning set forth in paragraph 1 of each Note.

 

“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made consistent with past practices), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet (excluding the footnotes) prepared in accordance with GAAP. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Equity Interests of such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of Section 4.10. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.10.

 

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

 

“Investment Grade Securities” means:

 

(1)   securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);

 

(2)   debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries;

 

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(3)   investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and

 

(4)   corresponding instruments in countries other than the United States customarily utilized for high quality investments.

 

“Investors” means KSL and its respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

 

“Issue Date” means November 30, 2010.

 

“KSL” means KSL Capital Partners, LLC.

 

“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.

 

“Leverage Ratio” means, for any date of determination, the ratio of (1) Consolidated Total Indebtedness to, (2) Adjusted EBITDA of the Company and its Restricted Subsidiaries for the Four Quarter Period.  In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the Four Quarter Period for which the Leverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Leverage Ratio is made (the “Leverage Ratio Calculation Date”), then the Leverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable Four Quarter Period.

 

For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the Four Quarter Period or subsequent to such Four Quarter Period and on or prior to or simultaneously with the Leverage Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in Adjusted EBITDA resulting therefrom) had occurred on the first day of the Four Quarter Period.  If since the beginning of such Four Quarter Period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Leverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the Four Quarter Period.

 

For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company.  If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Leverage Ratio Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness).  Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.  For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition.  Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.  For

 

16


 

purposes of this definition, the amount of Indebtedness outstanding under any revolving credit facility shall be calculated based on (A) the average daily balance of such Indebtedness during the Four Quarter Period or such shorter period for which such Credit Facility was outstanding or (B) if such Credit Facility was created after the end of the Four Quarter Period, the average daily balance of such Indebtedness during the period from the creation of such facility to the date of determination.

 

“Letter of Transmittal” means the letter of transmittal, or its electronic equivalent in accordance with the Applicable Procedures, to be prepared by the Company and sent to all Holders of the Initial Notes or any Additional Notes for use by such Holders in connection with an Exchange Offer.

 

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.

 

“Make-Whole Premium” means, with respect to a Note on any date of redemption, the greater of (1) 1% of the principal amount of such Note or (2) the excess of the present value at such date of redemption of (i) the redemption price of such Note at December 1, 2014 (such redemption price being set forth in the table appearing under Section 3.07(a)) plus (ii) all remaining required interest payments (exclusive of interest accrued and unpaid to the date of redemption) due on such Note through December 1, 2014 computed using a discount rate equal to the Treasury Rate as of such date of redemption plus 50 basis points, over the then outstanding principal amount of such Note.

 

“Management Agreement” means the Investment Management Agreement, dated as of December 26, 2006, among KSL Advisors, LLC, Fillmore CCA Holdings I, LLC, Fillmore CCA Holdings, Inc. and ClubCorp, Inc.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

 

“Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.

 

“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness to be paid as a result of such transaction and any deduction of appropriate amounts to be provided by the Company or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Company or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.

 

“Non-Recourse Debt” means Indebtedness:

 

(1)   as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender; and

 

17


 

(2)   no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity.

 

“Note Guarantee” means a guarantee by a Guarantor of the Company’s obligations with respect to the Notes pursuant to Article 10 or any supplemental indenture to this Indenture.

 

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

 

“Offering Memorandum” means the Offering Memorandum dated November 22, 2010, pursuant to which the Initial Notes were offered.

 

“Officer” means the Chief Executive Officer, the President, the Chief Financial Officer, Treasurer, Secretary or any Vice President of the Company, or any Guarantor, as applicable.

 

“Officer’s Certificate” means a certificate, in form and substance reasonably satisfactory to the Trustee, signed by an Officer of the Company and delivered to the Trustee and which meets the requirements of Section 12.05.

 

“Opinion of Counsel” means a written opinion, in form and substance reasonably satisfactory to the Trustee, from legal counsel who is acceptable to the Trustee and which meets the requirements of Section 12.05. The counsel may be an employee of or counsel to the Company or the Trustee.

 

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively, and, with respect to DTC, shall include Euroclear and Clearstream.

 

“Permitted Business” means any business conducted (as described in the Offering Memorandum) by the Company and its Restricted Subsidiaries on the Issue Date and other businesses reasonably related or ancillary thereto.

 

“Permitted Holders” means KSL, investment vehicles managed by KSL, partners or members of KSL and any Affiliates or Related Persons therof.

 

“Permitted Investments” means:

 

(1)   any Investment in the Company or in a Restricted Subsidiary of the Company;

 

(2)   any Investment in cash, Cash Equivalents or Investment Grade Securities;

 

(3)   any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:

 

(a)           such Person becomes a Restricted Subsidiary of the Company; or

 

(b)           such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company,

 

and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;

 

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(4)   any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.12 or any other disposition of assets not constituting an Asset Sale;

 

(5)   any Investments received solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company or any of its direct or indirect parent companies;

 

(6)   Hedging Obligations incurred under Section 4.09(b)(8);

 

(7)   [reserved];

 

(8)   accounts receivable, prepaid expenses, advances and deposits arising in the ordinary course of business of the Company or its Restricted Subsidiaries;

 

(9)   Investments received (a) in settlement of debts created in the ordinary course of business and owing to the Company or any of its Restricted Subsidiaries, (b) in satisfaction of judgments or foreclosure or (c) in exchange for any other Investment or accounts receivable held by the Company or any of its Restricted Subsidiaries in connection with or as a result of a bankruptcy, workout,  reorganization or recapitalization of the issuer of such Investment or account receivable;

 

(10) loans or advances to members representing their deferred initiation deposits or fees, arising in the ordinary course of business consistent with past practice;

 

(11) loans and advances to employees, directors, officers, managers, distributors and consultants (a) for business-related travel expenses, moving expenses and other similar expenses or payroll advances, in each case incurred in the ordinary course of business or consistent with past practices or (b) to fund such Person’s purchase of Equity Interests of the Company or any direct or indirect parent company thereof; provided that the proceeds of any such loans to purchase Equity Interests under this clause (11)(b) are either received by the Company or contributed by such direct or indirect parent company to the Company and excluded from the calculation under clause (3) of Section 4.10(a) except to the extent such loans are actually repaid;

 

(12) guarantees of Indebtedness permitted under Section 4.09;

 

(13) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;

 

(14) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of the Section 4.14(b) (except transactions described in clauses (3), (5) and (8) of Section 4.14(b));

 

(15) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment;

 

(16) additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (16) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of $45.0 million and 2.5% of Total Assets at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

 

(17) Investments resulting from the designation of one or more Financing Unrestricted Subsidiaries; provided that the aggregate fair market value of all property and assets (as valued at the time of designation of each applicable Subsidiary (as described in Section 4.15) that are transferred to, contributed to or otherwise held by all Financing Unrestricted Subsidiaries shall not exceed $75.0 million;

 

19

 

(18) any Investment existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date to the extent described in this offering memorandum, or an Investment consisting of any extension, modification or renewal of any such Investment existing on the Issue Date or binding commitment in effect on the Issue Date to the extent described in this offering memorandum; provided that the amount of any such Investment may be increased in such extension, modification or renewal only (a) as required by the terms of such Investment or binding commitment as in existence on the Issue Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or (b) as otherwise permitted under this Indenture;

 

(19) advances, loans or extensions of trade credit in the ordinary course of business by the Company or any of its Restricted Subsidiaries;

 

(20) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business; and

 

(21) repurchases of Notes.

 

“Permitted Liens” means:

 

(1)   Liens securing Indebtedness permitted to be incurred under one or more Credit Facilities, including any letter of credit relating thereto, pursuant to Section 4.09 in an amount not to exceed the amount of Indebtedness permitted to be incurred pursuant to Section 4.09(b)(1);

 

(2)   Liens in favor of the Company or any of its Restricted Subsidiaries;

 

(3)   (a) Liens on deposits to secure the performance of bids, trade contracts, governmental contracts, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations that do not materially or adversely affect the value or use of such property), in each case, other than Indebtedness, and incurred in the ordinary course of business or (b) obligations in respect of letters of credit or bank guarantees that have been posted to support payment of the items set forth in clause (a);

 

(4)   Liens for taxes, assessments or other governmental charges or claims that are not yet delinquent or overdue for a period of more than 30 days, are not yet payable or subject to penalties for non-payment or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor;

 

(5)   leases, subleases, licenses or sublicenses granted to others that do not in any material respect interfere with the business of the Company or any of its Restricted Subsidiaries;

 

(6)   landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction contractor’s or other similar Liens, in each case, not overdue for a period of more than 90 days or which are being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

 

(7)   (a)  Liens incurred or pledges or deposits made in connection with workers’ compensation, unemployment insurance and other social security laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in

 

20


 

the ordinary course of business, (b) pledges and deposits in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies, in each case payable to insurance carriers that provide insurance to the Company or any of its Restricted Subsidiaries, or (c) obligations in respect of letters of credit or bank guarantees that have been posted by the Company or any of its Restricted Subsidiaries to support the payments of the items set forth in clauses (a) and (b);

 

(8)   survey exceptions, encroachments, protrusions, recorded and unrecorded servitudes, easements, rights-of-way, restrictions or reservations of, or rights of others for, licenses, rights-of -way, sewers, electric lines, telegraph and telephone lines and other similar purposes, variations in area or measurement, rights of parties in possession under written leases or occupancy agreements, and other title defects and non-monetary encumbrances affecting real property, or zoning, building or other restrictions as to the use of real properties or other similar encumbrances incurred which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary course of the business of the Company or any of its Restricted Subsidiaries, as the case may be, and any exceptions to title set forth in any title policies;

 

(9)   Liens arising from the rendering of a final judgment or order against the Company or any of its Restricted Subsidiaries that does not give rise to an Event of Default;

 

(10) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;

 

(11) Liens incurred in the ordinary course of business with respect to obligations that do not exceed $20.0 million at any one time outstanding;

 

(12) Liens on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, that such Liens may not extend to any other property or other assets owned by the Company or any of its Restricted Subsidiaries;

 

(13) Liens on property or other assets at the time the Company or a Restricted Subsidiary acquired the property or such other assets, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any of its Restricted Subsidiaries; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger, amalgamation or consolidation; provided, further, that the Liens may not extend to any other property owned by the Company or any of its Restricted Subsidiaries;

 

(14) Liens securing Hedging Obligations; provided that, with respect to Hedging Obligations relating to Indebtedness, such Indebtedness is, and is permitted to be under this Indenture, secured by a Lien on the same property securing such Hedging Obligations;

 

(15) Liens on specific items of inventory or other goods and the proceeds thereof of any Person securing such Person’s accounts payable or similar trade obligations in respect of bankers’ acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(16) Liens arising from Uniform Commercial Code (or equivalent statute) financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;

 

(17) Liens on equipment of the Company or any of its Restricted Subsidiaries granted in the ordinary course of business to the Company’s clients;

 

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(18) Liens to secure any modification, refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (12), (13) and (35); provided that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (12), (13) and (35) at the time the original Lien became a Permitted Lien under this Indenture, and (ii) an amount necessary to pay any fees and expenses, including premiums and accrued and unpaid interest, related to such modification, refinancing, refunding, extension, renewal or replacement;

 

(19) deposits made or other security provided in the ordinary course of business to secure liability to insurance carriers;

 

(20) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;

 

(21) [reserved];

 

(22) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(23) Liens (a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (b) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (c) in favor of banking institutions arising as a matter of law or under general terms and conditions encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

 

(24) Liens that are contractual rights of set-off (a) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts of the Company or any of its Restricted Subsidiaries to permit satisfaction of over-draft or similar obligations incurred in the ordinary course of business of the Company and its Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered into with customers of the Company or any of its Restricted Subsidiaries in the ordinary course of business;

 

(25) Liens securing obligations owed by the Company or any Restricted Subsidiary to any lender under the Credit Agreement or any Affiliate of such a lender in respect of any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds;

 

(26) any encumbrance or restriction (including put and call arrangements) with respect to capital stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

 

(27) Liens solely on any cash earnest money deposits made by the Company or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted;

 

(28) ground leases in respect of real property on which facilities owned or leased by the Company or any of its Subsidiaries are located;

 

(29) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

 

(30) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;

 

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(31) Liens on the assets of a Restricted Subsidiary that is not a Guarantor securing Indebtedness of such Subsidiaries that were permitted by the terms of this Indenture to be incurred;

 

(32) Liens arising solely from precautionary Uniform Commercial Code (or equivalent statute) financing statements or similar filings;

 

(33) Liens on vehicles arising from Capital Lease Obligations entered into with respect to such vehicles so long as such leases are permitted under Section 4.09;

 

(34) Liens securing Capital Lease Obligations permitted to be incurred pursuant to Section 4.09 and Indebtedness permitted to be incurred under clauses (4) or (5) of Section 4.09(b) and any Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Capital Lease Obligations and Indebtedness incurred under such clauses (4) or (5) of Section 4.09(b); provided, however, that such Liens securing Capital Lease Obligations or Indebtedness incurred under either clause (4) or (5) of Section 4.09(b) may not extend to property owned by the Company or any Restricted Subsidiary other than the property being leased or acquired pursuant to such clause (4) or (5);

 

(35) Liens existing on the Issue Date;

 

(36) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary permitted to be incurred in accordance with Section 4.09;

 

(37) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 4.09; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;

 

(38) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes; and

 

(39) Liens incurred to secure Obligations in respect of any Indebtedness permitted to be incurred pursuant to Section 4.09; provided that, with respect to Liens securing Obligations permitted under this clause (39), at the time of incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio would be no greater than 3.00 to 1.0.

 

“Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:

 

(1)   the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest thereon and the amount of any reasonably determined premium (including reasonable tender premiums) necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith);

 

(2)   such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

(3)   if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and

 

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(4)   such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.

 

“Person” means any individual, corporation, partnership, limited partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same Indebtedness as that evidenced by such particular Note; and any Note authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Note.

 

“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up.

 

“Priority Senior Obligations” means, without duplication:

 

(1)   all Secured Indebtedness or Senior Indebtedness of the Company or any of its Restricted Subsidiaries;

 

(2)   all Capital Lease Obligations of the Company or any of its Restricted Subsidiaries;

 

(3)   all Attributable Debt of the Company or any of its Restricted Subsidiaries in respect of sale and leaseback transactions; and

 

(4)   all Indebtedness (other than Indebtedness representing liability for refundable membership deposits or initiation fees incurred in the ordinary course of business) of any Restricted Subsidiary of the Company that is not a Guarantor.

 

“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except as otherwise permitted by the provisions of this Indenture.

 

“QIB” means a “qualified institutional buyer” as defined in Rule 144A.

 

“Qualified Proceeds” means the fair market value (as determined in good faith by the Company’s Board of Directors) of assets that are used or useful in, or Capital Stock of any Person engaged in, a Permitted Business.

 

“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company which shall be substituted for Moody’s or S&P or both, as the case may be.

 

“Registration Rights Agreement” means the Registration Rights Agreement related to the Notes dated the Issue Date, among the Company, the Guarantors and the initial purchaser.

 

“Regular Record Date” for the interest payable on any Interest Payment Date means the applicable date specified as a “Record Date” on the face of the Note.

 

“Regulation S” means Regulation S promulgated under the Securities Act.

 

“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as appropriate.

 

“Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit A bearing the Global Note Legend and the Private Placement Legend and deposited with and registered in the name of

 

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the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.

 

“Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A bearing the Global Note Legend, the Private Placement Legend and Regulation S Temporary Global Note Legend and deposited with and registered in the name of the Depository or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold for initial resale in reliance on Rule 903 of Regulation S.

 

“Regulation S Temporary Global Note Legend” means the legend set forth in Section 2.06(g)(iii) hereof to be placed on all Regulation S Temporary Global Notes issued under this Indenture.

 

“Related Person” with respect to any Permitted Holder means:

 

(1)   any controlling stockholder or a majority (or more) owned Subsidiary of such Permitted Holder or, in the case of an individual, any spouse or immediate family member of such Permitted Holder, any trust created for the benefit of such individual or such individual’s estate, executor, administrator, committee or beneficiaries; or

 

(2)   any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially holding a majority (or more) controlling interest of which consist of such Permitted Holder and/or such other Persons referred to in the immediately preceding clause (1).

 

“Reorganization Transactions” means the Reorganization Transactions, as such term is defined in the Offering Memorandum.

 

“Replacement Assets” means (1) assets that will be used or useful in a Permitted Business or (2) substantially all the assets of a Permitted Business or a majority the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary.

 

“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

“Restricted Definitive Note” means one or more Definitive Notes bearing the Private Placement Legend.

 

“Restricted Global Notes” means 144A Global Notes and Regulation S Global Notes.

 

“Restricted Investment” means an Investment other than a Permitted Investment.

 

“Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.

 

“Rule 144” means Rule 144 promulgated under the Securities Act.

 

“Rule 144A” means Rule 144A promulgated under the Securities Act.

 

“Rule 903” means Rule 903 promulgated under the Securities Act.

 

“Rule 904” means Rule 904 promulgated under the Securities Act.

 

“Sale and Lease-Back Transaction” means any arrangement providing for the leasing by the Company or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such

 

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leasing.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Secured Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries secured by a Lien upon property of the Company or any of its Restricted Subsidiaries.

 

“Senior Indebtedness” means:

 

(1)   all Indebtedness of the Company or any Guarantor outstanding under the Credit Facilities or Notes and related guarantees (including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Company or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for post filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created or incurred) and all obligations of the Company or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;

 

(2)   all Hedging Obligations (and guarantees thereof) owing to a Lender (as defined in the  Credit Facilities) or any Affiliate of such Lender (or any Person that was a Lender or an Affiliate of such Lender at the time the applicable agreement giving rise to such Hedging Obligation was entered into), provided that such Hedging Obligations are permitted to be incurred under the terms of this Indenture;

 

(3)   any other Indebtedness of the Company or any Guarantor permitted to be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related guarantee; and

 

(4)   all Obligations with respect to the items listed in the preceding clauses (1), (2) and (3);

 

provided, however, that Senior Indebtedness shall not include:

 

(a)   any obligation of such Person to the Company or any of its Subsidiaries;

 

(b)   any liability for federal, state, local or other taxes owed or owing by such Person;

 

(c)   any accounts payable or other liability to trade creditors arising in the ordinary course of business;

 

(d)   any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness or other Obligation of such Person; or

 

(e)   that portion of any Indebtedness which at the time of incurrence is incurred in violation of this Indenture.

 

“Shelf Registration Statement” means the registration statement relating to the registration of the Notes under Rule 415 of the Securities Act, as may be set forth in a Registration Rights Agreement.

 

“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.

 

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or

 

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repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

 

“Subordinated Indebtedness” means, with respect to the Notes,

 

(1)   any Indebtedness of the Company which is by its terms subordinated in right of payment to the Notes, and

 

(2)   any Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Note Guarantee of such entity.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)   any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and

 

(2)   any partnership, joint venture, limited liability company or similar entity of which

 

(a)           more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and

 

(b)           such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

 

“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.

 

“TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder.

 

“Total Assets” means the total assets of the Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Company or such other Person as may be expressly stated.

 

“Treasury Rate” means, as of any date of redemption, the yield to maturity at such date of redemption of United States Treasury securities with a constant maturity (as complied and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the date that the applicable redemption notice relating to such redemption is mailed (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the period from such date of redemption to December 1, 2014; provided, however, that if the period from such date of redemption to December 1, 2014 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

 

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

 

“Unrestricted Definitive Notes” means one or more Definitive Notes that do not and are not required to bear the Private Placement Legend.

 

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“Unrestricted Global Notes” means one or more Global Notes that do not and are not required to bear the Private Placement Legend and are deposited with and registered in the name of the Depositary or its nominee.

 

“Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

 

(1)           has no Indebtedness other than Non-Recourse Debt;

 

(2)           is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

 

(3)           is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

 

(4)           has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries, unless such guarantee or credit support is released upon such designation.

 

Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.10.  If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company shall be in default of Section 4.09.

 

“U.S. Government Securities” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

(1)           the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

(2)           the then outstanding principal amount of such Indebtedness.

 

“Wholly Owned Restricted Subsidiary” of any specified Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such Person.

 

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Section 1.02.                Other Definitions.

 

 

 

Defined in

Term

 

Section

“Acceleration Notice”

 

6.02

“Acceptable Commitment”

 

4.14

“Affiliate Transaction”

 

4.14

“Asset Sale Offer”

 

4.12

“Authentication Order”

 

2.02

“Benefited Party”

 

10.01

“Change of Control Offer”

 

4.16

“Change of Control Payment”

 

4.16

“Covenant Defeasance”

 

8.03

“DTC”

 

2.03

“Event of Default”

 

6.01

“Excess Proceeds”

 

4.11

“Initial Lien”

 

4.11

“Legal Defeasance”

 

8.02

“losses”

 

7.07

“Offer Amount”

 

3.09

“Offer Period”

 

3.09

“Offer to Purchase”

 

3.09

“Paying Agent”

 

2.03

“Payment Default”

 

6.01

“Permitted Debt”

 

4.09

“Purchase Date”

 

3.09

“Purchase Price”

 

3.09

“Registrar”

 

2.03

“Refunding Capital Stock”

 

4.10

“Restricted Payments”

 

4.10

“Security Register”

 

2.03

“Successor Company”

 

5.01

“Successor Person”

 

10.04

“Treasury Capital Stock”

 

4.10

 

Section 1.03.                Incorporation by Reference of Trust Indenture Act.

 

(a)   Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.

 

(b)   The following TIA terms used in this Indenture have the following meanings:

 

“indenture securities” means the Notes and the Note Guarantees;

 

“indenture security holder” means a Holder of a Note;

 

“indenture to be qualified” means this Indenture;

 

“indenture trustee” or “institutional trustee” means the Trustee; and

 

“obligor” on the Notes means the Company and any successor obligor upon the Notes.

 

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(c)   All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA and not otherwise defined herein have the meanings so assigned to them either in the TIA, by another statute or Commission rule, as applicable.

 

Section 1.04.                Rules of Construction.

 

(a)   Unless the context otherwise requires:

 

(i)                a term has the meaning assigned to it;

 

(ii)               an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;

 

(iii)              “or” is not exclusive;

 

(iv)             words in the singular include the plural, and in the plural include the singular;

 

(v)              any reference in this instrument to “Article,” “Section,” “clause” or “Exhibit” is to the designated Article, Section, clause or exhibit of this Indenture;

 

(vi)             the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

 

(vii)            “including” means “including without limitation;”

 

(viii)           provisions apply to successive events and transactions; and

 

(ix)              references to sections of or rules under the Securities Act, the Exchange Act or the TIA shall be deemed to include substitute, replacement or successor sections or rules adopted by the Commission from time to time thereunder.

 

ARTICLE 2.

 

THE NOTES

 

Section 2.01.                Form and Dating.

 

(a)   General.  The Notes and the Trustee’s certificate of authentication shall be substantially in the form included in Exhibit A, which is hereby incorporated in and expressly made part of this Indenture.  The Notes may have notations, legends or endorsements required by law, exchange rule or usage in addition to those set forth on Exhibit A.  Each Note shall be dated the date of its authentication.  The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.  The terms and provisions contained in the Notes shall constitute a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  To the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

(b)   Form of Notes.  Notes shall be issued initially in global form and shall be substantially in the form of Exhibit A (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note”).  Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto).  Each Global Note shall represent such aggregate principal amount of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or

 

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increased, as appropriate, to reflect exchanges and redemptions and transfers of interests therein.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06.

 

(c)   Temporary Global Notes.  Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, at its office, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of (i) a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a Global Note, bearing a Private Placement Legend, all as contemplated by Section 2.06(b)), and (ii) an Officer’s Certificate from the Company.  Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures.  Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note.  The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interests as hereinafter provided.

 

(d)   Book-Entry Provisions.  This Section 2.01(d) shall apply only to Global Notes deposited with the Trustee, as custodian for the Depositary.  Participants and Indirect Participants shall have no rights under this Indenture or any Global Note with respect to any Global Note held on their behalf by the Depositary or by the Trustee as custodian for the Depositary, and the Depositary shall be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants or Indirect Participants, the Applicable Procedures or the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note.

 

(e)   Euroclear and Clearstream Procedures Applicable.  The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in Global Notes that are held by Participants through Euroclear or Clearstream.

 

(f)    Certificated Securities.  The Company shall exchange Global Notes for Definitive Notes if: (1) at any time the Depositary notifies the Company that it is unwilling or unable to continue to act as Depositary for the Global Notes or if at any time the Depositary shall no longer be eligible to act as such because it ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company shall not have appointed a successor Depositary within 120 days after the Company receives such notice or becomes aware of such ineligibility, or (2) upon written request of a Holder if a Default or Event of Default shall have occurred and be continuing.

 

Upon the occurrence of any of the events set forth in clauses (1) or(2) above, the Company shall execute, and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate

 

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and deliver, Definitive Notes, in authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Notes in exchange for such Global Notes.

 

In no event shall the Regulation S Temporary Global Note be exchanged by the Company for Definitive Notes prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.

 

Upon the exchange of a Global Note for Definitive Notes, such Global Note shall be cancelled by the Trustee or an agent of the Company or the Trustee.  Definitive Notes issued in exchange for a Global Note pursuant to this Section 2.01 shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its Participants or its Applicable Procedures, shall instruct the Trustee or an agent of the Company or the Trustee in writing.  The Trustee or such agent shall deliver such Definitive Notes to or as directed by the Persons in whose names such Definitive Notes are so registered or to the Depositary.

 

Section 2.02.                Execution and Authentication.

 

(a)   One Officer shall execute the Notes on behalf of the Company by manual or facsimile signature.

 

(b)   If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated by the Trustee, the Note shall nevertheless be valid.

 

(c)   A Note shall not be valid until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

 

(d)   The Trustee shall, upon a written order of the Company signed by an Officer (an “Authentication Order”), authenticate Notes for issuance.

 

(e)   The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes.  Unless otherwise provided in such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent shall have the same rights as the Trustee to deal with Holders, the Company or an Affiliate of the Company.

 

Section 2.03.                Registrar and Paying Agent.

 

(a)   The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register (the “Security Register”) of the Notes and of their transfer and exchange.  The Company may appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.  The Company may change any Paying Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

 

(b)   The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.

 

(c)   The Company initially appoints the Trustee to act as Registrar and Paying Agent and to act as Custodian with respect to the Global Notes, and the Trustee hereby agrees so to initially act.

 

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Section 2.04.                Paying Agent to Hold Money in Trust.

 

The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest and Additional Interest, if any, on the Notes, and shall notify the Trustee of any default by the Company in making any such payment.  While any such default continues, the Trustee may require a Paying Agent to pay all funds held by it relating to the Notes to the Trustee.  The Company at any time may require a Paying Agent to pay all funds held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for such funds.  If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all funds held by it as Paying Agent.  Upon any Event of Default under Section 6.01(8) hereof relating to the Company, the Trustee shall serve as Paying Agent for the Notes.

 

Section 2.05.                Holder Lists.

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA §312(a).  If the Trustee is not the Registrar, the Company shall furnish or cause to be furnished to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date or such shorter time as the Trustee may allow, as the Trustee may reasonably require of the names and addresses of the Holders and the Company shall otherwise comply with TIA §312(a).

 

Section 2.06.                Transfer and Exchange.

 

(a)   Transfer and Exchange of Global Notes.  A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.  Upon the occurrence of any of the events set forth in Section 2.01(f), Definitive Notes shall be issued in denominations of $2,000 or integral multiples of $1,000 in excess thereof and in such names as the Depositary shall instruct the Trustee in writing.  Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10.  Except as provided above, every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), and beneficial interests in a Global Note may not be transferred and exchanged other than as provided in Section 2.06(b), (c) or (f).

 

(b)   Transfer and Exchange of Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures.  Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act.  Transfers of beneficial interests in Global Notes also shall require compliance with either clause (i) or (ii) below, as applicable, as well as one or more of the other following clauses, as applicable:

 

(i)    Transfer of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend and any Applicable Procedures; provided, however, that prior to the expiration of the Distribution Compliance Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to or for the account or benefit of a “U.S. Person” (as defined in Rule 902(k) of Regulation S) (other than a “distributor” (as defined in Rule 902(d) of the Regulation S)).  Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note.  Except as may be required by any Applicable Procedures, no written

 

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orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).

 

(ii)   All Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i), the transferor of such beneficial interest must deliver to the Registrar either (A)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B)(1) if permitted under Section 2.06(a), a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.  Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f), the requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).

 

(iii)  Transfer of Beneficial Interests in a Restricted Global Note to Another Restricted Global Note.  A holder of a beneficial interest in a Restricted Global Note may transfer such beneficial interest to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) and the Registrar receives the following:

 

(A)          if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (1) thereof or, if permitted by the Applicable Procedures, item (3) thereof; and

 

(B)           if the transferee will take delivery in the form of a beneficial interest in the Regulation S Temporary Global Note or the Regulation S Permanent Global Note, as the case may be, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof.

 

(iv)  Transfer or Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note.  A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) and:

 

(A)          such exchange or transfer is effected pursuant to the Exchange Offer in accordance with a Registration Rights Agreement

 

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and the holder of the beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, makes any and all certifications required in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement;

 

(B)           such transfer is effected pursuant to a Shelf Registration Statement in accordance with a Registration Rights Agreement;

 

(C)           such transfer is effected by a broker-dealer pursuant to an Exchange Offer Registration Statement in accordance with a Registration Rights Agreement; or

 

(D)          the Registrar receives the following:

 

(1)           if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C, including the certifications in item (1)(a) thereof; or

 

(2)           if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B, including the certifications in item (4) thereof;

 

and, in each such case set forth in this clause (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar and the Company to the effect that such exchange or transfer complies with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

If any such transfer is effected pursuant to clause (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to clause (B) or (D) above.

 

(v)   Transfer or Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note Prohibited.  Beneficial interests in an Unrestricted Global Note may not be exchanged for, or transferred to Persons who take delivery thereof in the form of, beneficial interests in a Restricted Global Note.

 

(c)   Transfer and Exchange of Beneficial Interests in Global Notes for Definitive Notes.

 

(i)            Transfer or Exchange of Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.  Subject to Section 2.06(a), if any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

 

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(A)          if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C, including the certifications in item (2)(a) thereof;

 

(B)           if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B, including the certifications in item (1) thereof;

 

(C)           if such beneficial interest is being transferred to a “Non-U.S. Person” in an offshore transaction (as defined in Section 902(k) of Regulation S) in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B, including the certifications in item (2) thereof;

 

(D)          if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B, including the certifications in item (3)(a) thereof; or

 

(E)           if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B, including the certifications in item (3)(b) thereof,

 

the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.06(h), the aggregate principal amount of the applicable Restricted Global Note, and the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate and deliver a Restricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in the instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder.  Any Restricted Definitive Note issued in exchange for beneficial interests in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall designate in such instructions.  The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered.  Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

(ii)   Transfer or Exchange of Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes.  Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.

 

(iii)  Transfer or Exchange of Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.  Subject to Section 2.06(a), a holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:

 

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(A)          such exchange or transfer is effected pursuant to an Exchange Offer in accordance with a Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, makes any and all certifications in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement;

 

(B)           such transfer is effected pursuant to a Shelf Registration Statement in accordance with a Registration Rights Agreement;

 

(C)           such transfer is effected by a broker-dealer pursuant to an Exchange Offer Registration Statement in accordance with a Registration Rights Agreement; or

 

(D)          the Registrar receives the following:

 

(1)           if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C, including the certifications in item (1)(b) thereof; or

 

(2)           if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B, including the certifications in item (4) thereof;

 

and, in each such case set forth in this clause (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar and the Company to the effect that such exchange or transfer complies with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of any of the conditions of any of the clauses of this Section 2.06(c)(iii), the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder, and the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.06(h), the aggregate principal amount of the applicable Restricted Global Note.

 

(iv)  Transfer or Exchange of Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.  Subject to Section 2.06(a), if any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the applicable conditions set forth in Section 2.06(b)(ii), the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.06(h), the aggregate principal amount of the applicable Unrestricted Global Note, and the Company shall execute, and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder.  Any Unrestricted Definitive Note issued in

 

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exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall designate in such instructions.  The Trustee shall deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered.  Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.

 

(d)   Transfer and Exchange of Definitive Notes for Beneficial Interests in the Global Notes.

 

(i)    Transfer or Exchange of Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes.  If any holder of a Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

 

(A)          if the holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in a Restricted Global Note, a certificate from such holder in the form of Exhibit C, including the certifications in item (2)(b) thereof;

 

(B)           if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B, including the certifications in item (1) thereof;

 

(C)           if such Restricted Definitive Note is being transferred to a “non-U.S. Person” in an offshore transaction (as defined in Rule 902(k) of Regulation S) in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B, including the certifications in item (2) thereof;

 

(D)          if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B, including the certifications in item (3)(a) thereof; or

 

(E)           if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B, including the certifications in item (3)(b) thereof,

 

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased in a corresponding amount pursuant to Section 2.06(h), the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, a 144A Global Note, in the case of clause (C) above and a Regulation S Global Note.

 

(ii)   Transfer or Exchange of Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A holder of a Restricted Definitive Note may exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:

 

(A)          such exchange or transfer is effected pursuant to an Exchange Offer in accordance with a Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or

 

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the transferee, in the case of a transfer, makes any and all certifications in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement;

 

(B)           such transfer is effected pursuant to a Shelf Registration Statement in accordance with a Registration Rights Agreement;

 

(C)           such transfer is effected by a broker-dealer pursuant to an Exchange Offer Registration Statement in accordance with a Registration Rights Agreement; or

 

(D)          the Registrar receives the following:

 

(1)           if the holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

 

(2)           if the holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B, including the certifications in item (4) thereof;

 

and, in each such case set forth in this clause (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar and the Company to the effect that such exchange or transfer shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend shall no longer be required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions of any of the clauses in this Section 2.06(d)(ii), the Trustee shall cancel such Restricted Definitive Note and increase or cause to be increased in a corresponding amount pursuant to Section 2.06(h), the aggregate principal amount of the Unrestricted Global Note.

 

(iii)  Transfer or Exchange of Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A holder of an Unrestricted Definitive Note may exchange such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased in a corresponding amount pursuant to Section 2.06(h) the aggregate principal amount of one of the Unrestricted Global Notes.

 

(iv)  Transfer or Exchange of Unrestricted Definitive Notes to Beneficial Interests in Restricted Global Notes Prohibited.  An Unrestricted Definitive Note may not be exchanged for, or transferred to Persons who take delivery thereof in the form of, beneficial interests in a Restricted Global Note.

 

(v)   Issuance of Unrestricted Global Notes.  If any such exchange or transfer of a Definitive Note for a beneficial interest in an Unrestricted Global Note is effected pursuant to clause (ii)(B), (ii)(D) or (iii) at a time when an Unrestricted Global Note has not yet been issued,

 

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the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

 

(e)   Transfer and Exchange of Definitive Notes for Definitive Notes.  Upon request by a holder of Definitive Notes and such holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such holder.  In addition, the requesting holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

 

(i)    Transfer of Restricted Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

 

(A)          if the transfer will be made pursuant to Rule 144A, a certificate in the form of Exhibit B, including the certifications in item (1) thereof;

 

(B)           if the transfer will be made pursuant to Rule 903 or Rule 904, a certificate in the form of Exhibit B, including the certifications in item (2) thereof; and

 

(C)           if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, a certificate in the form of Exhibit B, including the certifications and certificates required by item (3) thereof, if applicable.

 

(ii)   Transfer or Exchange of Restricted Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be exchanged by the holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note only if:

 

(A)          such exchange or transfer is effected pursuant to an Exchange Offer in accordance with a Registration Rights Agreement and the holder, in the case of an exchange, or the transferee, in the case of a transfer, makes any and all certifications in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by a Registration Rights Agreement;

 

(B)           any such transfer is effected pursuant to a Shelf Registration Statement in accordance with a Registration Rights Agreement;

 

(C)           any such transfer is effected by a broker-dealer pursuant to an Exchange Offer Registration Statement in accordance with a Registration Rights Agreement; or

 

(D)          the Registrar receives the following:

 

(1)           if the holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Notes for an Unrestricted

 

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Definitive Note, a certificate from such holder in the form of Exhibit C, including the certifications in item (1)(d) thereof; or

 

(2)           if the holder of such Restricted Definitive Notes proposes to transfer such Restricted Definitive Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B, including the certifications in item (4) thereof;

 

and, in each such case set forth in this clause (D), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar and the Company to the effect that such exchange or transfer complies with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions of any of the clauses of this Section 2.06(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note and the Company shall execute, and upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate aggregate principal amount to the Person designated by the holder of such prior Restricted Definitive Note in instructions delivered to the Registrar by such holder.

 

(iii)  Transfer of Unrestricted Definitive Notes to Unrestricted Definitive Notes.  A holder of Unrestricted Definitive Notes may transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note.  Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the holder thereof.

 

(f)    Exchange Offer.  Upon the occurrence of an Exchange Offer in accordance with a Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate (A) one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of the beneficial interests in the applicable Restricted Global Notes (1) tendered for acceptance by Persons that make any and all certifications in the applicable Letters of Transmittal (or are deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement and (2) accepted for exchange in such Exchange Offer and (B) Unrestricted Definitive Notes in an aggregate principal amount equal to the aggregate principal amount of the Restricted Definitive Notes tendered for acceptance by Persons who made the foregoing certifications and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such Notes, the Trustee shall reduce or cause to be reduced in a corresponding amount the aggregate principal amount of the applicable Restricted Global Notes, and the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate and deliver to the Persons designated by the holders of Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate aggregate principal amount.

 

(g)   Legends.  The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

 

(i)                Private Placement Legend.

 

(A)          Except as permitted by clause (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

 

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“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND [IN THE CASE OF RULE 144A NOTES: THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)] [IN THE CASE OF REGULATIONS NOTES]: WHEN THIS SECURITY (OR ANY PREDECESSOR SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES, IN COMPLIANCE WITH RULE 904 UNDER REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C), (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.  [IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON, AND IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]”

 

(B)           Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to clauses (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.

 

(ii)               Global Note Legend.  Each Global Note shall bear a legend in substantially the following form:

 

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“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

(iii)  Regulation S Temporary Global Note Legend.  Each Regulation S Temporary Global Note shall bear a legend in substantially the following form:

 

“EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE REGULATION S PERMANENT GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(B)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT.  DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR SYSTEM OR CLEARSTREAM LUXEMBOURG, A SOCIETE ANONYME AND ONLY (1) TO THE COMPANY, (2) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF THE CASES (1) THROUGH (4) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER JURISDICTIONS.  HOLDERS OF INTERESTS IN THIS REGULATION S

 

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TEMPORARY GLOBAL NOTE WILL NOTIFY ANY PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.

 

BENEFICIAL INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY BE EXCHANGED FOR INTERESTS IN A RESTRICTED GLOBAL NOTE ONLY IF (1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE WITH RULE 144A, AND (2) THE TRANSFEROR OF THE REGULATION S TEMPORARY GLOBAL NOTE FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL NOTE IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.

 

BENEFICIAL INTERESTS IN A GLOBAL TRANSFER RESTRICTED NOTE MAY BE TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL NOTE, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT IF SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S OR RULE 144 (IF AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE INTEREST TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH EUROCLEAR SYSTEM OR CLEARSTREAM LUXEMBOURG, A SOCIETE ANONYME.”

 

(iv)  Tax Legend.  Each Global Note and each Definitive Note shall bear the legend in substantially the following form:

 

“THE FOLLOWING INFORMATION IS SUPPLIED SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES.  THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT UNDER SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.  YOU MAY CONTACT                             , THE                              OF THE COMPANY, AT [ADDRESS], [PHONE NUMBER], WHO WILL PROVIDE YOU WITH ANY REQUIRED INFORMATION REGARDING THE ORIGINAL ISSUE DISCOUNT.”

 

(h)   Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the aggregate principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, the aggregate principal amount of such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

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(i)    General Provisions Relating to Transfers and Exchanges.

 

(i)            No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.16 and 9.05).

 

(ii)           All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

(iii)          Neither the Registrar nor the Company shall be required (A) to issue, to register the transfer of or to exchange any Note during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the date of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date (including a Regular Record Date) and the next succeeding Interest Payment Date.

 

(iv)          Prior to due presentment for the registration of transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of, premium, if any, and interest and Additional Interest, if any, on, such Note and for all other purposes, in each case regardless of any notice to the contrary.

 

(v)           All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

 

(vi)          The Trustee is hereby authorized and directed to enter into a letter of representation with the Depositary in the form provided by the Company and to act in accordance with such letter.

 

Section 2.07.                Replacement Notes.

 

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate a replacement Note.  If required by the Trustee or the Company, the Holder of such Note shall provide indemnity that is sufficient, in the judgment of the Trustee or the Company, to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer in connection with such replacement.  If required by the Company, such Holder shall reimburse the Company for its reasonable expenses in connection with such replacement.

 

Every replacement Note issued in accordance with this Section 2.07 shall be the valid obligation of the Company, evidencing the same debt as the destroyed, lost or stolen Note, and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

Section 2.08.                Outstanding Notes.

 

(a)   The Notes outstanding at any time shall be the entire principal amount of Notes represented by all of the Global Notes and Definitive Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those subject to reductions in beneficial interests effected by the Trustee in accordance with Section 2.06, and those described in this Section 2.08 as not outstanding.  Except as set forth in Section 2.09, a Note shall not cease to be outstanding because the Company or an

 

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Affiliate of the Company holds the Note; provided, however, that Notes held by the Company or a Subsidiary of the Company shall be deemed not to be outstanding for purposes of Section 3.07(c).

 

(b)   If a Note is replaced pursuant to Section 2.07, it shall cease to be outstanding unless the Trustee receives proof satisfactory to it that the replaced note is held by a bona fide purchaser.

 

(c)   If the principal amount of any Note is considered paid under Section 4.01, it shall cease to be outstanding and interest on it shall cease to accrue.

 

(d)   If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date, a Purchase Date or a maturity date, funds sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

 

Section 2.09.                Treasury Notes.

 

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, or by any Affiliate of the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned shall be so disregarded.

 

Section 2.10.                Temporary Notes.

 

Until certificates representing Notes are ready for delivery, the Company may prepare and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Global Notes or Definitive Notes in exchange for temporary Notes, as applicable.  After preparation of Definitive Notes, the Temporary Note will be exchangeable for Definitive Notes upon surrender of the Temporary Notes.

 

Holders of temporary Notes shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

Section 2.11.                Cancellation.

 

The Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  Upon sole direction of the Company, the Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the record retention requirements of the Exchange Act or other applicable laws).  Certification of the destruction of all cancelled Notes shall be delivered to the Company from time to time upon request.  The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

 

Section 2.12.                Payment of Interest; Defaulted Interest.

 

If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related Interest Payment Date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to

 

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be mailed to Holders a notice that states the special record date, the related Interest Payment Date and the amount of such interest to be paid.

 

Section 2.13.                CUSIP or ISIN Numbers.

 

The Company in issuing the Notes may use “CUSIP” and/or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN” numbers in notices of redemption or Offers to Purchase as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or notice of an Offer to Purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or Offer to Purchase shall not be affected by any defect in or omission of such numbers.  The Company shall promptly notify the Trustee of any change in the “CUSIP” and/or “ISIN” numbers.

 

Section 2.14.                Additional Interest.

 

If Additional Interest is payable by the Company pursuant to a Registration Rights Agreement and paragraph 1 of the Notes, the Company shall deliver to the Trustee a certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such interest is payable pursuant to Section 4.01.  Unless and until a Responsible Officer of the Trustee receives such a certificate or instruction or direction from the Holders in accordance with the terms of this Indenture, the Trustee may assume without inquiry that no Additional Interest is payable.  The foregoing shall not prejudice the rights of the Holders with respect to their entitlement to Additional Interest as otherwise set forth in this Indenture or the Notes and pursuing any action against the Company directly or otherwise directing the Trustee to take any such action in accordance with the terms of this Indenture and the Notes.  If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the details of such payment.

 

Section 2.15.                Issuance of Additional Notes.

 

The Company shall be entitled, subject to its compliance with Section 4.09, to issue Additional Notes under this Indenture which shall have identical terms as the Initial Notes issued on the date hereof, other than with respect to the date of issuance, issue price and rights under a related Registration Rights Agreement, if any.  The Initial Notes issued on the date hereof, any Additional Notes and all Exchange Notes issued in exchange therefor shall be treated as a single class for all purposes under this Indenture, including directions, waivers, amendments, consents, redemptions and Offers to Purchase.

 

With respect to any Additional Notes, the Company shall set forth in a Board Resolution and an Officer’s Certificate, a copy of each of which shall be delivered to the Trustee, the following information:

 

(a)   the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;

 

(b)   the issue price, the issue date and the CUSIP and/or ISIN number of such Additional Notes; provided, however, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code, other than a de minimis original issue discount within the meaning of Section 1273 of the Code; and

 

(c)   whether such Additional Notes shall be subject to the restrictions on transfer set forth in Section 2.06 relating to Restricted Global Notes and Restricted Definitive Notes.

 

Section 2.16.                Record Date.

 

The record date for purposes of determining the identity of Holders of Notes entitled to vote or consent to any action by vote or consent or permitted under this Indenture shall be determined as provided for in TIA Section 316(c).

 

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ARTICLE 3.

 

REDEMPTION AND PREPAYMENT

 

Section 3.01.                Notices to Trustee.

 

If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07, it shall furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date (or such shorter period as allowed by the Trustee), an Officer’s Certificate setting forth (a) the applicable section of this Indenture pursuant to which the redemption shall occur, (b) the redemption date, (c) the principal amount of Notes to be redeemed and (d) the redemption price, if then ascertainable.

 

Section 3.02.                Selection of Notes to Be Redeemed or Purchased.

 

If less than all of the Notes are to be redeemed or purchased in an Offer to Purchase at any time, the Trustee will select Notes for redemption or purchase:

 

(a)   if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or

 

(b)   if the Notes are not so listed, on a pro rata basis (or, in the case of Notes issued in global form pursuant to Article 2 hereof, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate), by lot or by such other method required by law or depositary requirements.

 

In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.

 

The Trustee will promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased.  No Notes of $2,000 or less shall be redeemed or purchased in part.  Notes and portions of Notes selected for redemption or purchase will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased.  Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

 

Section 3.03.                Notice of Redemption.

 

At least 30 days but not more than 60 days prior to a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at such Holder’s registered address appearing in the Security Register, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance pursuant to Article 8 or a satisfaction and discharge pursuant to Article 11.

 

The notice shall identify the Notes to be redeemed and shall state:

 

(a)   the redemption date;

 

(b)   the appropriate method for calculation of the redemption price, but need not include the redemption price itself; the actual redemption price may be set forth in an Officer’s Certificate delivered to the Trustee prior to the redemption date;

 

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(c)   if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, if applicable, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;

 

(d)   the name and address of the Paying Agent;

 

(e)   that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(f)    that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

(g)   the applicable section of this Indenture or the Notes pursuant to which the Notes called for redemption are being redeemed;

 

(h)   that no representation is made as to the correctness of the CUSIP and/or ISIN numbers, if any, listed in such notice or printed on the Notes; and

 

(i)    if applicable, any condition to such redemption.

 

At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least two Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 3.03 (or such shorter period allowed by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice (in the name and at the expense of the Company) and setting forth the information to be stated in such notice as provided in this Section 3.03.

 

Section 3.04.                Effect of Notice of Redemption.

 

Except as provided for in Section 3.07(d), once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption shall become irrevocably due and payable on the redemption date at the redemption price.

 

Section 3.05.                Deposit of Redemption or Purchase Price.

 

On or prior to 11:00 a.m., New York City time, on the redemption or purchase date (or such later time of day to which the Trustee may reasonably agree), the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of, and accrued interest and Additional Interest, if any, on, all Notes to be redeemed or purchased on that date.  The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, accrued interest and Additional Interest, if any, on, all Notes to be redeemed or purchased.

 

If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase in accordance with Section 2.08(d), whether or not such Notes are presented for payment.  If a Note is redeemed or purchased on or after a Regular Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest, if any, shall be paid to the Person in whose name such Note was registered at the close of business on such Regular Record Date.  If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.

 

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Section 3.06.                Notes Redeemed or Purchased in Part.

 

Upon surrender of a Note that is redeemed or purchased in part, the Company shall issue and, upon receipt of an authentication order in accordance with Section 2.02, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided that each new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.  It is understood that, notwithstanding anything in this Indenture to the contrary only an authentication order in accordance with Section 2.02 and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.

 

Section 3.07.                Optional Redemption.

 

(a)   Except as set forth in clauses (b) and (c) of this Section 3.07, the Notes will not be redeemable at the option of the Company prior to December 1, 2014.  On and after December 1, 2014, the Company may redeem all or a part of the Notes, at once or over time, after giving the notice required pursuant to Section 3.03 upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if any, on the Notes redeemed to the applicable redemption date, if redeemed during the twelve-month period beginning on December 1 of the years indicated below:

 

Year

 

Percentage

 

2014

 

105.000

%

2015

 

102.500

%

2016 and thereafter

 

100.000

%

 

(b)   At any time prior to December 1, 2014, the Company may redeem all or any portion of the Notes, at once or over time, after giving the notice required pursuant to Section 3.03 hereof upon not less than 30 nor more than 60 days’ notice, at a redemption price equal to the sum of (i) the principal amount of the Notes to be redeemed; plus (ii) accrued and unpaid interest and Additional Interest, if any, to the applicable date of redemption; plus (iii) the Make-Whole Premium.

 

(c)   At any time prior to December 1, 2013, the Company may redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price of 110% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date, with the net cash proceeds of one or more Equity Offerings; provided that:

 

(1)  at least 65% of the aggregate principal amount of Notes originally issued under this Indenture remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Company and its Subsidiaries); and

 

(2)  the redemption must occur within 90 days of the date of the closing of such Equity Offering.

 

(d)   Notice of redemption upon any Equity Offering or in connection with a transaction (or series of related transactions) that constitute a Change of Control may, at the Company’s discretion, be given prior to completion thereof and be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering or Change of Control.

 

(e)   Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.

 

Section 3.08.                Mandatory Redemption.

 

Except as set forth in Sections 4.12 and 4.16, the Company shall not be required to make mandatory redemption or sinking fund payments with respect to, or offer to purchase, the Notes.

 

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Section 3.09.                Offer To Purchase.

 

(a)   In the event that, pursuant to Section 4.12 or 4.16, the Company shall be required to commence an Asset Sale Offer or a Change of Control Offer (each, an “Offer to Purchase”), it shall follow the procedures specified below.

 

(b)   [Reserved].

 

(c)   The Company shall commence the Offer to Purchase by sending, by first-class mail, with a copy to the Trustee, to each Holder at such Holder’s address appearing in the Security Register, a notice, the terms of which shall govern the Offer to Purchase, stating:

 

(1)  that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.12 or Section 4.16, as the case may be, and, in the case of a Change of Control Offer, that a Change of Control has occurred, the circumstances and relevant facts regarding the Change of Control and that a Change of Control Offer is being made pursuant to Section 4.16;

 

(2)  the principal amount of Notes required to be purchased pursuant to Section 4.12 or Section 4.16, as the case may be (the “Offer Amount”), the purchase price set forth in Section 4.12 or Section 4.16, as applicable (the “Purchase Price”), the Offer Period and the Purchase Date (each as defined below);

 

(3)  except as provided in clause (9) below, that all Notes timely tendered and not withdrawn shall be accepted for payment;

 

(4)  that any Note not tendered or accepted for payment shall continue to accrue interest;

 

(5)  that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest after the Purchase Date;

 

(6)  that Holders electing to have a Note purchased pursuant to an Offer to Purchase may elect to have Notes purchased in denominations of $1,000 or an integral multiple of $1,000 in excess thereof only (so long as no Note of $2,000 or less will be purchased in part);

 

(7)  that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, the Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice before the close of business on the third Business Day before the Purchase Date;

 

(8)  that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note (or portions thereof) the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

 

(9)  that, in the case of an Asset Sale Offer, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or an integral multiple of $1,000 in excess thereof, will be purchased (so long as no Note of $2,000 or less will be purchased in part));

 

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(10)  that Holders whose Notes were purchased in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); and

 

(11)  any other procedures the Holders must follow in order to tender their Notes (or portions thereof) for payment and the procedures that Holders must follow in order to withdraw an election to tender Notes (or portions thereof) for payment.

 

(d)   The Offer to Purchase shall remain open for a period of at least 20 Business Days but no more than 60 days following its commencement, except to the extent that a longer period is required by applicable law (the “Offer Period”).  No later than five (5) Business Days (and in any event no later than the 60th day following the Change of Control) after the termination of the Offer Period (the “Purchase Date”), the Company shall purchase the Offer Amount or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Offer to Purchase.  Payment for any Notes so purchased shall be made in the same manner as interest payments are made.  The Company will publicly announce the results of the Offer to Purchase on or as soon as practicable after the Purchase Date.

 

(e)   On or prior to the Purchase Date, the Company shall, to the extent lawful:

 

(1)  accept for payment (on a pro rata basis to the extent necessary in connection with an Asset Sale Offer), the Offer Amount of Notes or portions of Notes properly tendered and not withdrawn pursuant to the Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered;

 

(2)  deposit with the Paying Agent funds in an amount equal to the Purchase Price in respect of all Notes or portions of Notes properly tendered; and

 

(3)  deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company and that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09.

 

(f)    The Paying Agent (or the Company, if acting as the Paying Agent) will promptly (but in the case of a Change of Control, not later than 60 days from the date of the Change of Control) send to each tendering Holder the Purchase Price.  In the event that any portion of the Notes surrendered is not purchased by the Company, the Company shall promptly execute and issue a new Note in a principal amount equal to such unpurchased portion of the Note surrendered, and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate and mail (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, however, that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.   Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof.

 

(g)   If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Offer to Purchase.

 

(h)   The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the Offer to Purchase.  To the extent that the provisions of any securities laws or regulations conflict with Sections 4.12 or 4.16, as applicable, this Section 3.09 or other provisions of this Indenture, the Company shall comply with applicable securities laws and regulations and shall not be deemed to have breached its obligations under Sections 4.12 or 4.16, as applicable, this Section 3.09 or such other provision by virtue of such compliance.

 

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(i)    Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made in accordance with the provisions of Section 3.01 through 3.06.

 

ARTICLE 4.

 

COVENANTS

 

Section 4.01.                Payment of Notes.

 

The Company shall pay or cause to be paid the principal of, premium, if any, and interest and Additional Interest, if any, on, the Notes on the dates and in the manner provided in this Indenture and the Notes.  Principal, premium, if any, and interest and Additional Interest, if any, shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. New York City time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest and Additional Interest, if any, then due.  Such Paying Agent shall return to the Company promptly, and in any event, no later than five (5) Business Days following the date of payment, any money (including accrued interest) that exceeds such amount of principal, premium, if any, and interest and Additional Interest paid on the Notes.  The Company shall pay Additional Interest, if any, in the same manner, on the dates and in the amounts set forth in a Registration Rights Agreement, the Notes and this Indenture.  If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.

 

The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate equal to the then applicable rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods), from time to time on demand at the same rate to the extent lawful.

 

Interest shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 4.02.                Maintenance of Office or Agency.

 

(a)   The Company shall maintain an office or agency (which may be an office or drop facility of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be presented or surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.  The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

(b)   The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.  The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

(c)   The Company hereby designates the Corporate Trust Office of the Trustee, as one such office, drop facility or agency of the Company in accordance with Section 2.03.

 

Section 4.03.                Reports.

 

(a)   Whether or not required by the Commission, so long as any Notes are outstanding, the Company will make available to the Trustee and the Holders of Notes, within the time periods specified in the Commission’s rules and regulations for non-accelerated filers:

 

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(1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms; and

 

(2) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.

 

(b)   In addition, whether or not required by the Commission, the Company will file a copy of all of the information and reports referred to in clauses (1) and (2) of Section 4.03(a) with the Commission for public availability within the time periods specified in the Commission’s rules and regulations for non-accelerated filers (unless the Commission will not accept such a filing); provided that the Company’s obligation to file information and reports with the Commission under this Indenture shall not commence until such time that the Company has filed a registration statement pursuant to the Registration Rights Agreement and such registration statement has been declared effective by the Commission, and, prior to such time, the Company shall provide a copy of all of the information and reports referred to in clauses (1) and (2) of Section 4.03(a) by posting such information on the website of the Company or otherwise making it available to the Trustee and Holders of the Notes.  In addition, the Company and the Note Guarantors have agreed that, for so long as any Notes remain outstanding, they will make available to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, which requirement shall be deemed satisfied (i) by posting such information on the website of the Company or (ii) if such information is contained in any publicly available filing by the Company with the Commission.

 

(c)   In the event that any direct or indirect parent company of the Company becomes a Guarantor (which shall be permitted, subject to compliance with this Indenture, at any time, at the Company’s sole discretion), this Indenture will permit the Company to satisfy its obligations in this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand.

 

(d)   If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by Section 4.03(a) shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

 

Section 4.04.                Compliance Certificate.

 

(a)   The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, an Officer’s Certificate stating that a review of the activities of the Company, the Guarantors and their respective Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company, the Guarantors and their respective Subsidiaries have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company, the Guarantors and their respective Subsidiaries have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and are not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest and Additional Interest, if any, on, the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.

 

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(b)   The Company shall otherwise comply with TIA §314(a)(2).

 

(c)   The Company shall deliver to the Trustee, within 10 Business Days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any event that with the giving of notice and/or the lapse of time would become an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.

 

Section 4.05.                Taxes.

 

The Company will pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments and governmental levies, except such as are being contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders.

 

Section 4.06.                Stay, Extension and Usury Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

 

Section 4.07.                Corporate Existence.

 

Subject to Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each Guarantor, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Guarantor and (ii) the rights (charter and statutory), licenses and franchises of the Company and such Guarantors; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Guarantor, if the Company’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and the Guarantors, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes, or that such preservation is not necessary in connection with any transaction not prohibited by this Indenture.

 

Section 4.08.                Payments for Consent.

 

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration, to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment.

 

Section 4.09.                Incurrence of Indebtedness and Issuance of Preferred Stock.

 

(a)   The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Debt) and the Company will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt), issue shares of Disqualified Stock and issue shares of Preferred Stock, if the Fixed Charge Coverage

 

55


 

Ratio on a consolidated basis for the Company and its Restricted Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that Restricted Subsidiaries that are not Guarantors may not incur Indebtedness or Disqualified Stock or Preferred Stock pursuant to the Fixed Charge Coverage Ratio test under this Section 4.09(a) if, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the net proceeds therefrom), more than an aggregate of $40.0 million of Indebtedness or Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors would be outstanding pursuant to the Fixed Charge Coverage Ratio test under this first paragraph and clauses (15), (16)(B) and (17) below at such time.

 

(b)   Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):

 

(1)   the incurrence of Indebtedness pursuant to Credit Facilities by the Company (and the incurrence by the Guarantors of guarantees thereof) and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount of $400.0 million, minus, in each case, the amount of permanent repayments of Indebtedness under Credit Facilities incurred pursuant to this clause (1) with the Net Proceeds from Asset Sales pursuant to clause (1) of Section 4.12(b);

 

(2)   the incurrence by the Company and any Restricted Subsidiary of the Company of the Existing Indebtedness (other than Indebtedness under clauses (1) and (3) and, for purposes of clause (6) below, (8) and (16));

 

(3)   the incurrence by the Company and any Restricted Subsidiary of Indebtedness represented by the Notes and the related Note Guarantees outstanding on the Issue Date and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;

 

(4)   the incurrence by the Company or any Restricted Subsidiary of Indebtedness (including Capital Lease Obligations), Disqualified Stock and Preferred Stock, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at any time outstanding which, taken together with all other Indebtedness incurred pursuant to this clause (4) and all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, Disqualified Stock and Preferred Stock, does not exceed $25.0 million;

 

(5)   the incurrence by the Company or any Restricted Subsidiary of Indebtedness (including Capital Lease Obligations), Disqualified Stock and Preferred Stock, in each case, incurred for the purpose of financing all or any part of the purchase price for golf carts or golf course maintenance equipment, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness (including Capital Lease Obligations), Disqualified Stock or Preferred Stock incurred pursuant to this clause (5), not to exceed $300,000 at any time outstanding for each 18-hole equivalent golf course operated by the Company or any such Restricted Subsidiary;

 

(6)   the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness), Disqualified Stock and

 

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Preferred Stock that was permitted by this Indenture to be incurred under the Section 4.09(a) or clauses (2), (3), (4), (5), (6), (15) and (17) of Section 4.09(b);

 

(7)   the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:

 

(A)  if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and

 

(B)   (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (7);

 

(8)   the incurrence, in the ordinary course of business and not for speculative purposes, by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding or for the purpose of protecting the Company or any of its Restricted Subsidiaries against fluctuations in foreign currency exchange rates;

 

(9)   the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09;

 

(10) refundable membership deposits or initiation fees incurred in the ordinary course of business;

 

(11) the incurrence by the Company or any Restricted Subsidiary of (a) obligations under letters of credit or similar instruments (including reimbursement obligations with respect thereto) securing obligations (other than Indebtedness) entered into in the ordinary course of business of such Person to the extent such letters of credit or similar instruments are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than 30 days following receipt by such Person of a demand for reimbursement; (b) performance, bid, surety or appeal bonds and completion guarantees provided in the ordinary course of business or (c) agreements providing for indemnification, adjustment of purchase price or similar obligations, or guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary of the Company in connection with such disposition;

 

(12) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of Equity Interests or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Company or another of its Restricted Subsidiaries) shall be deemed, in each case, to be an issuance of such shares of Preferred Stock not permitted by this clause;

 

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(13) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of its incurrence;

 

(14) Indebtedness consisting of Indebtedness issued by the Company or any of its Restricted Subsidiaries to future, present or former employees, directors, officers, managers and consultants thereof, their respective Controlled Investment Affiliates or Immediate Family Members, in each case to finance the purchase or redemption of Equity Interests of the Company or any direct or indirect parent company of the Company to the extent described in clause (9) of Section 4.10(b);

 

(15) Indebtedness, Disqualified Stock or Preferred Stock of (a) the Company or a Restricted Subsidiary incurred to finance an acquisition or (b) Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition or merger, either

 

(a)   the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first sentence of this Section 4.09, or

 

(b)   the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries is greater than immediately prior to such acquisition or merger;

 

provided, however, that on a pro forma basis, together with amounts incurred and outstanding pursuant to the second proviso to Section 4.09(a) and Sections 4.09(b)(16)(B) and (17), no more than $40.0 million of Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding and incurred by Restricted Subsidiaries that are not Guarantors pursuant to this Section 4.09(b)(15) shall be incurred and outstanding;

 

(16)         (A) Indebtedness or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary equal to the net cash proceeds received by the Company since immediately after the Issue Date from the issue or sale of Equity Interests of the Company or cash contributed to the capital of the Company (in each case, other than Excluded Contributions or proceeds of Disqualified Stock or sales of Equity Interests to the Company or any of its Subsidiaries) as determined in accordance with Section 4.10(a)(3)(b) and (c) to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 4.10(b) or to make Permitted Investments (other than Permitted Investments specified in clauses (1) and (3) of the definition thereof) and (B) Indebtedness or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to this Section 4.09(b)(16)(B), does not at any one time outstanding exceed $45.0 million; provided, however, that on a pro forma basis, together with any amounts incurred and outstanding by Restricted Subsidiaries that are not Guarantors pursuant to the second proviso to Section 4.09(a) and Sections 4.09(b)(15) and (17), no more than $40.0 million of Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding and incurred pursuant to this Section 4.09(b)(16)(B) shall be incurred by Restricted Subsidiaries that are not Guarantors (it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this Section 4.09(b)(16)(B) shall cease to be deemed incurred or outstanding for purposes of this Section 4.09(b)(16)(B) but shall be deemed incurred for the purposes of Section 4.09(a) from and after the first date on which the Company or such Restricted

 

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Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on this Section 4.09(b)(16)(B));

 

(17) Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary incurred to finance or assumed in connection with an acquisition in a principal amount not to exceed $35.0 million in the aggregate at any one time outstanding together with all other Indebtedness, Disqualified Stock and/or Preferred Stock issued under this Section 4.09(b)(17) (it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this Section 4.09(b)(17) shall cease to be deemed incurred or outstanding for purposes of this Section 4.09(b)(17) but shall be deemed incurred for the purposes of Section 4.09(a) from and after the first date on which such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) hereof without reliance on this Section 4.09(b)(17)); provided, however, that on a pro forma basis, together with any amounts incurred and outstanding by Restricted Subsidiaries that are not Guarantors pursuant to the second proviso to Section 4.09(a) and Sections 4.09(b)(15) and (16)(B), no more than $40.0 million of Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding and incurred pursuant to this Section 4.09(b)(17) shall be incurred by Restricted Subsidiaries that are not Guarantors (it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this Section 4.09(b)(17) shall cease to be deemed incurred or outstanding for purposes of this Section 4.09(b)(17) but shall be deemed incurred for the purposes of Section 4.09(a) from and after the first date on which the Company or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on this Section 4.09(b)(17); and

 

(18) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements in each case, incurred in the ordinary course of business.

 

(c)   For purposes of determining compliance with this Section 4.09:

 

(1)   in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (18) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, and from time to time may reclassify such item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the Issue Date shall be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt; and

 

(2)   at the time of incurrence, the Company will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in the first and second paragraphs of this Section 4.09.

 

(d)   Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 4.09.

 

(e)   For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency ex-change rate in effect on the date of such refinancing, such

 

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U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the principal amount of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.

 

(f)    The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.

 

(g)     Neither the Company nor any Guarantor will incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes or Note Guarantee of such Guarantor on at least substantially identical terms.

 

(h)     (i)  Unsecured Indebtedness will not be treated as subordinated or junior to Secured Indebtedness merely because it is unsecured and (ii) Senior Indebtedness will not be treated as subordinated or junior to any other Senior Indebtedness merely because it has a junior priority with respect to the same collateral.

 

Section 4.10.                Restricted Payments.

 

(a)   The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

 

(1)   declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) (other than (a) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or (b) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities);

 

(2)   purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company;

 

(3)   make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value, in each case, prior to any scheduled payment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (a) Indebtedness permitted under Section 4.09(b)(7) or (b) the purchase, repurchase or other acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase or acquisition; or

 

(4)   make any Restricted Investment (all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as “Restricted Payments”),

 

unless, at the time of and after giving effect to such Restricted Payment:

 

(1)   no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and

 

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(2)   the Company would, after giving effect to such transaction on a pro forma basis, (a) have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) and (b) have had a Leverage Ratio of not greater than 4.50 to 1.00; and

 

(3)   such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by Section 4.10(b)(2) through (13)), is less than the sum, without duplication, of:

 

(a)   100% of the Adjusted EBITDA of the Company for the period (taken as one accounting period) from the beginning of the first day of the fiscal quarter commencing after the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment less 1.75 times Consolidated Interest Expense of the Company for the same period, plus

 

(b)   100% of the aggregate net cash proceeds, and the fair market value (as determined in good faith by the Company’s Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property received by the Company since immediately after the Issue Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness, Disqualified Stock or Preferred Stock pursuant to Section 4.09(b)(16)(A)) from the issue or sale of:

 

(i)            (A) Equity Interests of the Company, including Treasury Capital Stock (as defined below), but excluding cash proceeds and the fair market value (as determined in good faith by the Company’s Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property received from the sale of:

 

(x)            Equity Interests to members of management, directors or consultants of the Company, any direct or indirect parent company of the Company and the Company’s Subsidiaries after the Issue Date to the extent such amounts have been applied to Restricted Payments made in accordance with Section 4.10(b)(9); and

 

(y)           Designated Preferred Stock,

 

and (B) to the extent such net cash proceeds are actually contributed to the Company, Equity Interests of the Company’s direct or indirect parent companies (excluding contributions of the proceeds from the sale of Designated Preferred Stock of such companies or contributions to the extent such amounts have been applied to Restricted Payments made in accordance with Section 4.10(b)(9)); or

 

(ii)   debt securities of the Company that have been converted into or exchanged for such Equity Interests of the Company;

 

provided, however, that this clause (b) shall not include the proceeds from (W) Refunding Capital Stock (as defined below), (X) Equity Interests or convertible debt securities of the Company sold to a Restricted Subsidiary, as the case may be, (Y) Disqualified Stock or debt securities that have been converted into Disqualified Stock or (Z) Excluded Contributions; plus

 

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(c)   100% of the aggregate amount of cash and the fair market value (as determined in good faith by the Company’s Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property contributed to the capital of the Company following the Issue Date (other than net cash proceeds to the extent such net cash proceeds (i) have been used to incur Indebtedness, Disqualified Stock or Preferred Stock, pursuant to Section 4.09(b)(16)(A), (ii) are contributed by a Restricted Subsidiary or (iii) constitute Excluded Contributions); plus

 

(d)   100% of the aggregate amount received in cash and the fair market value (as determined in good faith by the Company’s Board of Directors or, if such fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor), of marketable securities or other property received by means of:

 

(i)    the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Company or its Restricted Subsidiaries, in each case after the Issue Date; or

 

(ii)   the sale (other than to the Company or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent such Investment constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary after the Issue Date; plus

 

(e)   in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such Unrestricted Subsidiary (as determined by the Company’s Board of Directors in good faith or, if such fair market value exceeds $20.0 million, in writing by an Independent Financial Advisor) at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary other than to the extent such Investment constituted a Permitted Investment.

 

(b)   The foregoing provisions will not prohibit the following (provided that with respect to clauses (8), (11) and (12) below, no Default or Event of Default shall have occurred and be continuing):

 

(1)   the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Section 4.10;

 

(2)   the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Treasury Capital Stock”) or Subordinated Indebtedness of the Company or any Equity Interests of any direct or indirect parent company of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent company of the Company to the extent contributed to the Company (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under Section 4.10(b)(5), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent company of the Company) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;

 

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(3)   the defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;

 

(4)   the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary, in each case issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges;”

 

(5)           (A) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Company after the Issue Date;

 

(B)   the declaration and payment of dividends to a direct or indirect parent company of the Company, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such parent corporation issued after the Issue Date, provided that the amount of dividends paid pursuant to this clause (B) shall not exceed the aggregate amount of cash actually contributed to the Company from the sale of such Designated Preferred Stock; or

 

(C)   the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock in excess of the dividends declarable and payable thereon pursuant to Section 4.10(b)(2);

 

provided, however, in the case of each of clauses (a) and (c) of this Section 4.10(b)(5), that for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock or the declaration of such dividends on Refunding Capital Stock that is Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis, the Company and its Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;

 

(6)   payments made or expected to be made by the Company or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise of Equity Interests by any future, present or former employee, director, officer, member of management or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Restricted Subsidiary or any direct or indirect parent company of the Company and any repurchases of Equity Interests in consideration of such payments deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants or required withholding or similar taxes;

 

(7)   Restricted Payments that are made with Excluded Contributions;

 

(8)   the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to the provisions similar to those described under Sections 4.12 and 4.16, provided that all Notes validly tendered by Holders in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed, acquired or retired for value;

 

(9)   a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Company or any of its direct or indirect parent companies held by any future, present or former employee, director or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit

 

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plan or agreement; provided, however, that the aggregate Restricted Payments made under this Section 4.10(b)(9) do not exceed $2.5 million in any calendar year (which shall increase to $5.0 million in any calendar year subsequent to the consummation of an underwritten public Equity Offering by the Company or any direct or indirect parent company of the Company); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:

 

(A)  the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company and, to the extent contributed to the Company, Equity Interests of any of the Company’s direct or indirect parent companies, in each case to any future, present or former employee, director or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of Section 4.10(a)(3); plus

 

(B)   the cash proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries (or any direct or indirect parent company to the extent contributed to common equity of the Company and not otherwise applied to make Restricted Payments by virtue of clause (3) of the preceding paragraph) after the Issue Date; less

 

(C)   the amount of any Restricted Payments previously made with the cash proceeds described in clauses (a) and (b) of this Section 4.10(b)(9);

 

(10)  the declaration and payment of dividends or distributions by the Company to, or the making of loans to, any direct or indirect parent company of the Company in amounts required for any direct or indirect parent company of the Company to pay, in each case without duplication:

 

(A)  franchise and excise taxes and other fees, taxes and expenses required to maintain their corporate existence;

 

(B)   foreign, federal, state and local income and similar taxes, to the extent such income taxes are attributable to the income of the Company and its Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Company and its Restricted Subsidiaries would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such parent company;

 

(C)   customary salary, bonus and other benefits payable to employees, directors, officers and managers of any direct or indirect parent company of the Company to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;

 

(D)  general corporate operating and overhead costs and expenses of any direct or indirect parent company of the Company to the extent such costs and expenses are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;

 

(E)   fees and expenses other than to Affiliates of the Company related to any unsuccessful equity or debt offering of such parent company;

 

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(F)   amounts payable pursuant to the Management Agreement (including any amendment thereto so long as any such amendment is not materially disadvantageous in the good faith judgment of the Board of Directors of the Company to the Holders when taken as a whole, as compared to the Management Agreement as in effect on the Issue Date), solely to the extent such amounts are not paid directly by the Company or its Subsidiaries;

 

(G)   cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Company or any direct or indirect parent company of the Company; and

 

(H)  to finance Investments that would otherwise permitted to be made pursuant to this Section 4.10 if made by the Company; provided that (v) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (w) such direct or indirect parent company shall, immediately following the closing thereof, cause (i) all property acquired (whether assets or Equity Interests) to be contributed to the capital of the Company or one of its Restricted Subsidiaries or (ii) the merger or amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 5.01) in order to consummate such Investment, (x) such direct or indirect parent company and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Indenture, (y) any property received by the Company shall not increase amounts available for Restricted Payments pursuant to Section 4.10(a)(3) and (z) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this Section 4.10 (other than pursuant to Section 4.10(b)(7)) or pursuant to the definition of “Permitted Investments” (other than clause (5) thereof);

 

(11) the distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Company or a Restricted Subsidiary by Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents);

 

(12) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (12) not to exceed $35.0 million; and

 

(13) any Restricted Payment made in connection with the Reorganization Transactions.

 

Notwithstanding the immediately prior two paragraphs, prior to the second anniversary of the Issue Date, none of the Company or any of its Restricted Subsidiaries shall (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interest held by (a) the Investors or (b) a direct or indirect parent company of the Company, the proceeds of which will be used to fund the payment of a dividend or other distribution to the Investors, or (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company, in each case, held by the Investors; provided that following the consummation of an underwritten public Equity Offering by the Company or any direct or indirect parent company of the Company, which generates gross proceeds to the issuer and any selling stockholders of at least $125.0 million, the Company shall be permitted to make any Restricted Payment in compliance with this Section 4.10.

 

The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment (as determined by the Company’s Board of Directors in good faith or, if the fair market value for any transaction exceeds $20.0 million, in writing by an Independent Financial Advisor).

 

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Section 4.11.                Liens.

 

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise cause or suffer to exist or become effective Liens (the “Initial Lien”) of any kind against or upon any of their assets now owned or hereafter acquired, or upon any income or profits therefrom, securing Indebtedness or any related guarantee, other than Permitted Liens, without effectively providing that the Notes shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured.

 

Any Lien created for the benefit of the Holders of the Notes pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.

 

Section 4.12.                Asset Sales.

 

(a)   The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

 

(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value as determined in good faith by the Company’s Board of Directors of the assets sold or otherwise disposed of; and

 

(2) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Replacement Assets or a combination of both; provided that the amount of:

 

(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, or in footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written agreement that releases the Company or such Restricted Subsidiary from further liability;

 

(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days following the consummation of such Asset Sale; and

 

(C) any Designated Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at the time outstanding, not to exceed the greater of $20.0 million and 1.5% of Total Assets, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash for purposes of this provision and for no other purpose.

 

(b)   Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option:

 

(1) to repay Priority Senior Obligations and, in the case such Priority Senior Obligations

 

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are revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;

 

(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;

 

(3) to make a capital expenditure in or that is used or useful in a Permitted Business; or

 

(4) to acquire other long-term assets in or that are used or useful in a Permitted Business;

 

provided that, in the case of clauses (2), (3) or (4) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company, or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided, further, that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.

 

(c)   Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings, including under the Credit Agreement, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.

 

(d)   Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds.  The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash.  If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture.  If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company or agent for such other pari passu Indebtedness shall select such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered.  Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.

 

(e)   The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer.  To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.

 

Section 4.13.                Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

 

(a)   The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:

 

(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;

 

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(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or

 

(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

 

(b)   However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:

 

(1) contractual encumbrances or restrictions, including Existing Indebtedness and the Credit Agreement, in each case as in effect on the date of this Indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, than those contained in such Existing Indebtedness and the Credit Agreement, as the case may be, as in effect on the date of this Indenture;

 

(2) the Indenture, the Notes and the Note Guarantees;

 

(3) applicable law or any applicable rule, regulation or order;

 

(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired;

 

(5) customary non-assignment provisions in, or provisions that restrict in a customary manner the transfer of any property or asset that is, a lease, contract or agreement entered into in the ordinary course of business and consistent with past practices;

 

(6) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired of the nature described in Section 4.13(a)(3);

 

(7) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;

 

(8) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

 

(9) Liens and Secured Indebtedness otherwise permitted to be incurred pursuant to the covenants of this Indenture that limit the right of the debtor to dispose of the assets securing such Indebtedness;

 

(10) Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;

 

(11) restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts entered into in the ordinary course of business;

 

(12) not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Restricted Subsidiaries in

 

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any manner material to the Company or any of its Restricted Subsidiaries;

 

(13) customary provisions in joint venture agreements or arrangements and other similar agreements entered into in the ordinary course of business;

 

(14) Indebtedness of any Restricted Subsidiary of the Company or any agreement pursuant to which such Indebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes;

 

(15) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;

 

(16) customary provisions contained in leases, sub-leases, licenses or sub-licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business; and

 

(17) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.13(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) of Section 4.13(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

 

Section 4.14.                Transactions with Affiliates.

 

(a)   The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $3.0 million, unless:

 

(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person in an arms-length transaction; and

 

(2) the Company delivers to the Trustee:

 

(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a resolution of the Board of Directors set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.14 and that such Affiliate Transaction has been

 

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approved by a majority of the Board of Directors (including a majority of the members of the Board of Directors that are disinterested in such transaction, if there are any directors who are so disinterested); and

 

(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor.

 

(b)   The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:

 

(1) transactions between or among the Company and/or its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction;

 

(2) any reasonable employment, compensation, benefit or indemnification arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business with directors, officers or employees and the payment of reasonable and customary fees paid to, and indemnities provided for the benefit of, former, current or future officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;

 

(3) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;

 

(4)  transactions in the ordinary course of business between the Company or any of its Restricted Subsidiaries and any Person in which the Company or any of its Restricted Subsidiaries owns any Equity Interest; provided (i) such transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated Person, (ii) such Person is an Affiliate of the Company or such Restricted Subsidiary solely as a result of the Company or such Restricted Subsidiary’s ownership of the Equity Interests in such Person and (iii) no holder of Equity Interests in such Person are Affiliates of the Company or any of its Subsidiaries;

 

(5) Restricted Payments that are permitted by the provisions of this Indenture described in Section 4.10 and the definition of “Permitted Investments;”

 

(6) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (6) to the extent that the terms of any such existing agreement together with all amendments thereto are not otherwise disadvantageous to the Holders when taken as a whole;

 

(7) payments by the Company (and any direct or indirect parent company thereof) and its Subsidiaries pursuant to tax sharing agreements among the Company (and any such parent company) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Company, its Restricted Subsidiaries and its

 

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Unrestricted Subsidiaries (to the extent of amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;

 

(8) transactions with customers, clients, suppliers, contractors, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;

 

(9) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Company to any direct or indirect parent company of the Company or to any Permitted Holder or to any employee, director, officer, manager, distributor or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;

 

(10) payments to or from, and transactions with, any joint venture in the ordinary course of business (including, without limitation, any cash management activities related thereto);

 

(11) any agreement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);

 

(12) the payment of management, consulting, monitoring, transaction, advisory and other fees and related expenses (including indemnification and other similar amounts) pursuant to the Management Agreement (plus any unpaid management, consulting, monitoring, advisory and other fees and related expenses (including indemnification and similar amounts) accrued in any prior year) and the termination fees pursuant to the Management Agreement, or, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the Board of Directors of the Company to the Holders when taken as a whole, as compared to the Management Agreement as in effect on the Issue Date;

 

(13) payments by the Company or any of its Restricted Subsidiaries to any of the Investors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors of the Company (including a majority of members of the Board of Directors that are disinterested in such transaction, if there are any directors who are so disinterested);

 

(14) payments or loans (or cancellation of loans) to employees or consultants of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries and employment agreements, stock option plans and other similar arrangements with such employees or consultants which, in each case, are approved by the Company in good faith;

 

(15) investments by the Investors in securities of the Company or any of its Restricted Subsidiaries so long as (i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment constitutes less than 5% of the proposed or outstanding issue amount of such class of securities; and

 

(16)  any transaction or agreement between the Company or any of its Restricted Subsidiaries, on the one hand, and any Affiliates of the Company, on the other hand, in connection with the Reorganization Transactions.

 

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Section 4.15.                Designation of Restricted and Unrestricted Subsidiaries.

 

(a)   The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default.  If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be a Restricted Investment made as of the time of such designation and that designation will only be permitted if such Investment would be permitted at that time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.  The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis; and (2) no Default or Event of Default would be in existence following such designation.

 

(b)   With respect to the designation of any Unrestricted Subsidiary that will constitute a Financing Unrestricted Subsidiary, (A) immediately after giving effect to such designation, the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries on a pro forma basis shall be equal to or greater than the Fixed Charge Coverage Ratio immediately prior to giving effect to such designation, (B) immediately after giving effect to such designation, the Company and its Restricted Subsidiaries shall be in compliance with clause (17) of the definition of “Permitted Investments,” and (C) such Financing Unrestricted Subsidiary shall be designated solely in contemplation of a Disposition of the property or assets of, or an incurrence or issuance of Indebtedness by, such Financing Unrestricted Subsidiary and promptly, but in no event later than 30 days, after the effective date of the designation of each Financing Unrestricted Subsidiary, the Company shall make a prepayment of the Indebtedness under the Credit Agreement from the Net Proceeds resulting from such Disposition or from the net cash proceeds of such incurrence or issuance of Indebtedness in accordance with the terms of the Credit Agreement.  For purposes of clause (B) above, the designation of a Restricted Subsidiary as a Financing Unrestricted Subsidiary shall be deemed to be an Investment by the Company and each applicable Restricted Subsidiary (as applicable) in an amount equal to the fair market value (as determined in good faith by the Company’s Board of Directors or, if such fair market value exceeds $20.0 million, in writing by an Independent Financial Advisor) of the total assets of such Unrestricted Subsidiary at the date of designation.

 

Section 4.16.                Repurchase at the Option of Holders Upon a Change of Control.

 

(a)   Upon the occurrence of a Change of Control, the Company shall, within 30 days of a Change of Control, make an offer (the “Change of Control Offer”) pursuant to the procedures set forth in Section 3.09.  Each Holder shall have the right to accept such offer and require the Company to repurchase all or any portion (equal to $1,000 or an integral multiple of $1,000 in excess thereof, provided that no Note of $2,000 or less shall be redeemed in part) of such Holder’s Notes pursuant to the Change of Control Offer at a purchase price, in cash (the “Change of Control Amount”), equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if any, thereon, to the date of purchase.

 

(b)   The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.

 

(c)   Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer; provided that after the first public offering of the Company’s common stock or the common stock of any direct or indirect parent company of the Company after the Issue Date, such definitive agreement shall not be required.

 

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Section 4.17.                Limitation on Issuances of Guarantees of Indebtedness.

 

The Company will not permit any of its Wholly Owned Restricted Subsidiaries that is not a Guarantor, directly or indirectly, to guarantee any other Indebtedness of the Company or any Guarantor unless such Wholly Owned Restricted Subsidiary within 20 days executes and delivers a supplemental indenture to this Indenture providing a Note Guarantee, which Note Guarantee shall be senior to or pari passu with such Subsidiary’s guarantee of such other Indebtedness.

 

Notwithstanding the preceding paragraph, any Note Guarantee will provide by its terms that it may be automatically and unconditionally released and discharged under the circumstances described in Article 10.

 

ARTICLE 5.

 

SUCCESSORS

 

Section 5.01.                Merger, Consolidation and Sale of Assets.

 

(a)   The Company may not: (i) consolidate, amalgamate or merge with or into another Person (whether or not the Company is the surviving corporation); or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:

 

(1) either: (A) the Company is the surviving corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made is a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia (such Person, as the case may be, being herein called the “Successor Company”);

 

(2) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to supplemental indentures or other agreements in form satisfactory to the Trustee;

 

(3) immediately after such transaction no Default or Event of Default exists;

 

(4) the Company or the Successor Company (if other than the Company) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable Four Quarter Period, (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (b) the Fixed Charge Coverage Ratio would be greater than the Fixed Charge Coverage Ratio immediately prior to such transaction;

 

(5) each Guarantor, unless it is the other party to the transactions described above, in which case Section 10.04(a)(1)(B) shall apply, shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Registration Rights Agreement; and

 

(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.

 

(b)   The Successor Company will succeed to, and be substituted for the Company under this Indenture, the Note Guarantees and the Notes, as applicable.  Notwithstanding the immediately preceding clauses (3) and (4) of Section 5.01(a),

 

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(1) any Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Restricted Subsidiary, and

 

(2) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.

 

Section 5.02.                Successor Company Substituted.

 

The Successor Company shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture; provided, however, that the predecessor entity shall not be released from any of the obligations or covenants under this Indenture, including with respect to the payment of the Notes, in the case of:

 

(a)   a sale, transfer, assignment, conveyance or other disposition (unless such sale, transfer, assignment, conveyance or other disposition is of all or substantially all of the assets of the Company, taken as a whole), or

 

(b)   a lease.

 

ARTICLE 6.

 

DEFAULTS AND REMEDIES

 

Section 6.01.                Events of Default.

 

Each of the following is an “Event of Default”:

 

(a)   default for 30 days in the payment when due and payable upon redemption, acceleration or otherwise of interest on, or Additional Interest with respect to, the Notes;

 

(b)   default in payment when due and payable upon redemption, acceleration or otherwise of the principal of or premium, if any, on the Notes;

 

(c)   failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Sections 4.12, 4.16 or 5.01;

 

(d)   failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice given by the Trustee or the Holders of not less than 25% in principal of the Outstanding Notes to comply with any of the other agreements (other than a default referred to in clauses (a), (b) and (c) above) in this Indenture; provided that in the case of a failure to comply with Section 4.03, such period of continuance of such default shall be 120 days after written notice described in this clause (d) has been given; provided, further, that, if applicable, failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Section 314(a) of the Trust Indenture Act will not in itself be deemed a Default or Event of Default under this Indenture;

 

(e)   default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, if that default:

 

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(1)   is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or

 

(2)   results in the acceleration of such Indebtedness prior to its express maturity,

 

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $25.0 million or more;

 

(f)    failure by the Company or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $25.0 million, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final;

 

(g)   except as permitted by this Indenture, any Note Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Note Guarantee, other than by reason of termination of this Indenture or the release of any such Note Guarantee in accordance with this Indenture;

 

(h)   the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:

 

(1)   commences a voluntary case or gives notice of intention to make a proposal under any Bankruptcy Law;

 

(2)   consents to the entry of an order for relief against it in an involuntary case or consents to its dissolution or winding up;

 

(3)   consents to the appointment of a receiver, interim receiver, receiver and manager, liquidator, trustee or custodian of it or for all or substantially all of its property;

 

(4)   makes a general assignment for the benefit of its creditors; or

 

(5)   admits in writing its inability to pay its debts as they become due or otherwise admits its insolvency; and

 

(i)    a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(1)   is for relief against the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary in an involuntary case; or

 

(2)   appoints a receiver, interim receiver, receiver and manager, liquidator, trustee or custodian of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary; or

 

(3)   orders the liquidation of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary;

 

and such order or decree remains unstayed and in effect for 60 consecutive days.

 

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Section 6.02.                Acceleration.

 

In the case of an Event of Default specified in clause (h) or (i) of Section 6.01, all outstanding Notes will become due and payable immediately without any further declaration or other act on the part of the Trustee or the Holders.  Holders may not enforce this Indenture or the Notes except as provided in this Indenture.

 

If any other Event of Default described in Section 6.01 occurs and is continuing, the Trustee may, and the Trustee upon the request of Holders of 25% in principal amount of the outstanding Notes shall, or the Holders of at least 25% in principal amount of outstanding Notes may, declare the principal of all the Notes, together with all accrued and unpaid interest and Additional Interest, if any, and premium, if any, to be due and payable by notice in writing to the Company and the Trustee specifying the respective Event of Default and that such notice is a notice of acceleration (the “Acceleration Notice”), and the same shall become immediately due and payable.

 

Section 6.03.                Other Remedies.

 

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest and Additional Interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies shall be cumulative to the extent permitted by law.

 

Section 6.04.                Waiver of Defaults.

 

The Holders of at least a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may, on behalf of the Holders of all of the Notes, waive any existing Default or Event of Default and its consequences, except a continuing Default or Event of Default (i) in the payment of the principal of, premium, if any, or interest or Additional Interest, if any, on, the Notes and (ii) in respect of a covenant or provision which under this Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment.   In the event of any Event of Default specified in clause (4) of Section 6.01, such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose:

 

(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or

 

(2) holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or

 

(3) the default that is the basis for such Event of Default has been cured.

 

Upon any waiver of a Default or Event of Default, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed cured for every purpose of this Indenture but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.

 

Section 6.05.                Control by Majority.

 

Subject to Section 7.01, Section 7.02(f) (including the Trustee’s receipt of the security or indemnification described therein) and Section 7.07, in case an Event of Default shall occur and be continuing, the Holders of a majority in principal amount of the total outstanding Notes will be given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or

 

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power conferred on the Trustee.  The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability.

 

Section 6.06.                Limitation on Suits.

 

Subject to the provisions of this Indenture relating to the duties of the Trustee hereunder, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders of the Notes unless the Holders shall have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense.  Except to enforce the right to receive payment of principal, premium (if any) or interest and Additional Interest, if any, when due, no Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:

 

(1) such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

(2) Holders of at least 25% in principal amount of the total outstanding Notes have requested the Trustee to pursue the remedy;

 

(3) Holders of the Notes have offered the Trustee reasonable security or indemnity against any loss, liability or expense;

 

(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and

 

(5) Holders of a majority in principal amount of the total outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60 day period.

 

The preceding limitations shall not apply to a suit instituted by a Holder for enforcement of payment of principal of, and premium, if any, or interest and Additional Interest, if any, on, a Note on or after the respective due dates for such payments set forth in such Note.

 

A Holder may not use this Indenture to affect, disturb or prejudice the rights of another Holder or to obtain a preference or priority over another Holder.

 

Section 6.07.                Rights of Holders to Receive Payment.

 

Notwithstanding any other provision of this Indenture (including Section 6.06), the right of any Holder to receive payment of principal, premium, if any, and interest and Additional Interest, if any, on, the Notes held by such Holder, on or after the respective due dates expressed in the Notes (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

Section 6.08.                Collection Suit by Trustee.

 

If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest and Additional Interest, if any, then due and owing (together with interest on overdue principal and, to the extent lawful, interest) and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

Section 6.09.                Trustee May File Proofs of Claim.

 

The Trustee shall be authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable

 

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compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, moneys, securities and any other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 6.10.                Priorities.

 

If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:

 

First:  to the Trustee, its agents and attorneys for amounts due under Section 7.07, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second:  to Holders  for amounts due and unpaid on the Notes for principal, premium, if any, and interest and Additional Interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest and Additional Interest, if any, respectively; and

 

Third:  to the Company or to such party as a court of competent jurisdiction shall direct.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

 

Section 6.11.                Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.11 shall not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.

 

ARTICLE 7.

 

TRUSTEE

 

Section 7.01.                Duties of Trustee.

 

(a)   If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as

 

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a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.

 

(b)   Except during the continuance of an Event of Default:

 

(1)   the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)   in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.  However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

(c)   The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1)   this paragraph does not limit the effect of paragraph (b) of this Section;

 

(2)   the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(3)   the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

 

(d)   Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.

 

(e)   No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.  The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.

 

(f)    The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not be segregate from other funds except to the extent required by law.

 

Section 7.02.                Rights of Trustee.

 

Subject to TIA Section 315:

 

(a)   The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in any such document.

 

(b)   Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.  The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and

 

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protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(c)   The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

(d)   Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.

 

(e)   The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee from the Company or the Holders of 25% in aggregate principal amount of the outstanding Notes, and such notice references the specific Default or Event of Default, the Notes and this Indenture.

 

(f)    The Trustee shall not be required to give any bond or surety in respect of the performance of its power and duties hereunder.

 

(g)   The Trustee shall have no duty to inquire as to the performance of the Company’s covenants herein.

 

(h)   The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.

 

Section 7.03.                Individual Rights of Trustee.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.  However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as Trustee or resign.  Any Agent may do the same with like rights and duties.  The Trustee shall also be subject to Sections 7.10 and 7.11.

 

Section 7.04.                Trustee’s Disclaimer.

 

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

Section 7.05.                Notice of Defaults.

 

If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after it occurs.  Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest or Additional Interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.  In addition, the Trustee shall have no obligation to accelerate the Notes if in the judgment of the Trustee acceleration is not in the best interests of the Holders of the Notes.

 

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Section 7.06.                Reports by Trustee to Holders.

 

Within 60 days after each October 15 beginning with the October 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders a brief report dated as of such reporting date that complies with TIA §313(a) (but if no event described in TIA §313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with TIA §313(b)(2).  The Trustee shall also transmit by mail all reports as required by TIA §313(c).

 

A copy of each report at the time of its mailing to the Holders shall be mailed to the Company and filed with the Commission and each stock exchange on which the Notes are listed in accordance with TIA §313(d).  The Company shall promptly notify the Trustee when the Notes are listed on any stock exchange and any delisting thereof.

 

Section 7.07.                Compensation and Indemnity.

 

The Company shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

The Company shall indemnify the Trustee (in its capacity as Trustee) or any predecessor Trustee (in its capacity as Trustee) against any and all losses, claims, damages, penalties, fines, liabilities or expenses, including incidental and out-of-pocket expenses and reasonable attorneys fees (for purposes of this Article, “losses”) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent such losses may be attributable to its negligence or bad faith.  The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations under this Section 7.07, to the extent the Company has been prejudiced thereby.  The Company shall defend the claim, and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel if the Trustee has been reasonably advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Company and in the reasonable judgment of such counsel it is advisable for the Trustee to engage separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.  The Company need not reimburse any expense or indemnify against any loss incurred by the Trustee through the Trustee’s own willful misconduct, gross negligence or bad faith.

 

The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Notes through the expiration of the applicable statute of limitations.

 

To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal, premium, if any, and interest and Additional Interest, if any, on particular Notes.  Such Lien shall survive the satisfaction and discharge of this Indenture.

 

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

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Section 7.08.                Replacement of Trustee.

 

A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

 

The Trustee may resign in writing at any time upon 30 days’ prior notice to the Company and be discharged from the trust hereby created by so notifying the Company.  The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing.  The Company may remove the Trustee if:

 

(a)   the Trustee fails to comply with Section 7.10;

 

(b)   the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(c)   a custodian or public officer takes charge of the Trustee or its property; or

 

(d)   the Trustee becomes incapable of acting.

 

If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

 

If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders.  Subject to the Lien provided for in Section 7.07 hereof, the retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided, however, that all sums owing to the Trustee hereunder shall have been paid.  Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

 

In the case of an appointment hereunder of a separate or successor Trustee with respect to the Notes, the Company, the Guarantors, any retiring Trustee and each successor or separate Trustee with respect to the Notes shall execute and deliver an Indenture supplemental hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Notes as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustee co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any such other Trustee.

 

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Section 7.09.                Successor Trustee by Merger, etc.

 

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the successor corporation or banking association without any further act shall, if such successor corporation or banking association is otherwise eligible hereunder, be the successor Trustee.

 

Section 7.10.                Eligibility; Disqualification.

 

There shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million (or a wholly-owned subsidiary of a bank or trust company, or of a bank holding company, the principal subsidiary of which is a bank or trust company having a combined capital and surplus of at least $50.0 million) as set forth in its most recent published annual report of condition.

 

This Indenture shall always have a Trustee who satisfies the requirements of TIA §310(a)(1), (2) and (5).  The Trustee is subject to TIA §310(b).

 

Section 7.11.                Preferential Collection of Claims Against Company.

 

The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA §311(b).  A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.

 

ARTICLE 8.

 

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

Section 8.01.                Option to Effect Legal Defeasance or Covenant Defeasance.

 

The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03 be applied to all outstanding Notes upon compliance with the conditions set forth in this Article 8.

 

Section 8.02.                Legal Defeasance and Discharge.

 

Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”) and each Guarantor shall be released from all of its obligations under its Note Guarantee.  For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under the Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:  (a) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, or interest and Additional Interest, if any, on such Notes when such payments are due, (b) the Company’s obligations with respect to such Notes under Article 2 and Sections 4.01 and 4.02, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith and (d) this Article 8.  If the Company exercises under Section 8.01 the option applicable to this Section 8.02, subject to the satisfaction of the conditions set forth in Section 8.04, payment of the Notes may not be accelerated because of an Event of Default.  Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.

 

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Section 8.03.                Covenant Defeasance.

 

Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from its obligations under the covenants contained in Sections 3.09, 4.03, 4.04, 4.05 and 4.09 through 4.17, and the operation of clauses (4), (5) or (6) of Section 5.01(a), with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”) and each Guarantor shall be released from all of its obligations under its Note Guarantee with respect to such covenants in connection with such outstanding Notes and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.  If the Company exercises under Section 8.01 the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, payment of the Notes may not be accelerated because of an Event of Default specified in clauses (c), (d), (e), (f), (g), (h) (solely with respect to Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary) and (i) (solely with respect to Significant Subsidiaries or any group of Subsidiaries that when taken together, would constitute a Significant Subsidiary) of Section 6.01 or because of the Company’s failure to comply with clauses (4), (5) or (6) of Section 5.01(a).

 

Section 8.04.                Conditions to Legal or Covenant Defeasance.

 

The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes.

 

The Legal Defeasance or Covenant Defeasance may be exercised only if:

 

(a)   the Company irrevocably deposits with the Trustee, in trust (the “defeasance trust”), for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in such amounts as will be sufficient to pay the principal of, or interest and premium and Additional Interest, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as the case may be, and the Company shall specify whether the Notes are being defeased to maturity or to a particular redemption date; provided, however, that with respect to a redemption of all or any portion of the Notes, at once or over time, at any time prior to December 1, 2014 pursuant to paragraph 5 of the Notes and Section 3.07:

 

(i)            the amount of funds in trust that the Company must irrevocably deposit or cause to be deposited shall be determined using an assumed Make-Whole Premium calculated as of the date of deposit of such funds in trust; and

 

(ii)           at the time of deposit of such funds in trust, the funds in trust would be sufficient to pay and discharge the principal, premium, if any, and interest on the Notes and Additional Interest, if any, on the applicable date of redemption with an assumed Make-Whole Premium calculated as of the date of deposit of such funds in trust; and

 

(iii)          the Company must irrevocably deposit or cause to be deposited additional funds in trust, as necessary, on the applicable date of redemption, as required by Section 3.05, necessary to pay the Make-Whole Premium as determined on such date;

 

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(b)   in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

(c)   in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(d)   no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);

 

(e)   such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);

 

(f)    the Company shall deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and

 

(g)   the Company shall deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

Section 8.05.                Deposited Cash and U.S. Government Securities to be Held in Trust; Other Miscellaneous Provisions.

 

Subject to Section 8.06, all cash and non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest and Additional Interest, if any, but such cash and securities need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

 

Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any cash or non-callable U.S. Government Securities

 

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held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee (which may be the certification delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

Section 8.06.                Repayment to Company.

 

The Trustee shall promptly, and in any event, no later than five (5) Business Days, pay to the Company after request therefor, any excess money held with respect to the Notes at such time in excess of amounts required to pay any of the Company’s Obligations then owing with respect to the Notes.

 

Any cash or non-callable U.S. Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal, premium, if any, or interest or Additional Interest, if any, on any Note and remaining unclaimed for one year after such principal, premium, if any, or interest or Additional Interest has become due and payable shall be paid to the Company on its request unless an abandoned property law designates another person or (if then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as an unsecured creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in The New York Times or The Wall Street Journal (national edition), notice that such cash and securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such cash and securities then remaining shall be repaid to the Company.

 

Section 8.07.                Reinstatement.

 

If the Trustee or Paying Agent is unable to apply any cash or non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such cash and securities in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest and Additional Interest, if any, on, any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the cash and securities held by the Trustee or Paying Agent.

 

ARTICLE 9.

 

AMENDMENT, SUPPLEMENT AND WAIVER

 

Section 9.01.                Without Consent of Holders of Notes.

 

Notwithstanding Section 9.02, without the consent of any Holder of Notes, the Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes:

 

(1)           to cure any ambiguity, omission, mistake, defect or inconsistency;

 

(2)           to provide for uncertificated Notes in addition to or in place of certificated Notes;

 

(3)           to comply with the covenant relating to mergers, consolidations and sales of assets;

 

(4)           to provide for the assumption of the Company’s or any Guarantor’s obligations to the Holders;

 

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(5)           to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any such Holder;

 

(6)           to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company or any Guarantor;

 

(7)           to comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA;

 

(8)           to evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee thereunder pursuant to the requirements thereof;

 

(9)           to provide for the issuance of exchange notes or private exchange notes, which are identical to exchange notes except that they are not freely transferable;

 

(10)         to add a Guarantor under this Indenture;

 

(11)         to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation to facilitate the issuance and administration of the Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Notes; or

 

(12)         to conform the text of this Indenture or the Notes to any provision of the “Description of the Notes” in the Offering Memorandum to the extent that such provision in the “Description of the Notes” in the Offering Memorandum was intended to be a verbatim recitation of a provision of this Indenture or the Notes.

 

Section 9.02.                With Consent of Holders of Notes.

 

Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture, the Note Guarantees and the Notes with the consent of the Holders of at least a majority in aggregate principal amount of the Notes, including Additional Notes, if any, then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default (except a continuing Default or Event of Default in (i) the payment of principal, premium, if any, or interest or Additional Interest, if any, on the Notes and (ii) in respect of a covenant or provision which under this Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment) or compliance with any provision of this Indenture or the Notes may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the Notes, including Additional Notes, if any, then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes).

 

Without the consent of each Holder affected, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

 

(1) reduce the principal amount of such Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2) reduce the principal of or change the fixed final maturity of any such Note or alter or waive the provisions, with respect to the redemption of such Notes (other than provisions relating to Sections 4.12 and 4.16);

 

(3) reduce the rate of or change the time for payment of interest on any Note;

 

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(4) waive a Default in the payment of principal of or premium, if any, or interest and Additional Interest, if any, on the Notes, except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration, or in respect of a covenant or provision contained in this Indenture or any Note Guarantee which cannot be amended or modified without the consent of all Holders;

 

(5) make any Note payable in money other than that stated therein;

 

(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders to receive payments of principal of, or premium, if any, or interest and Additional Interest, if any, on, the Notes;

 

(7) make any change in these amendment and waiver provisions;

 

(8) impair the right of any Holder to receive payment of principal of, or interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;

 

(9) make any change to or modify the ranking of the Notes that would adversely affect the Holders; or

 

(10) except as expressly permitted by this Indenture, modify the Note Guarantee of any Subsidiary in any manner adverse to the Holders of the Notes.

 

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any supplemental indenture.  If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 120 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.

 

It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.

 

After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holder of each Note affected thereby to such Holder’s address appearing in the Security Register a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

 

Section 9.03.                Compliance with Trust Indenture Act.

 

Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.

 

Section 9.04.                Revocation and Effect of Consents.

 

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion thereof if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective.  An

 

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amendment, supplement or waiver shall become effective in accordance with its terms and thereafter shall bind every Holder.

 

Section 9.05.                Notation on or Exchange of Notes.

 

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated.  The Company in exchange for all Notes may issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver.

 

Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

 

Section 9.06.                Trustee to Sign Amendments, etc.

 

The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  None of the Company nor any Guarantor may sign an amendment or supplemental indenture until its board of directors (or committee serving a similar function) approves it.  In executing any amended or supplemental indenture, the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amended or supplemental indenture is the legal, valid and binding obligations of the Company enforceable against it in accordance with its terms, subject to customary exceptions and that such amended or supplemental indenture complies with the provisions hereof (including Section 9.03).

 

ARTICLE 10.

 

GUARANTEES

 

Section 10.01.              Guarantee.

 

Subject to this Article 10, the Guarantors hereby unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns:  (a) the due and punctual payment of the principal of, premium, if any, and interest and Additional Interest, if any, on the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal of and premium, if any, and, to the extent permitted by law, interest and Additional Interest, if any, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under this Indenture, the Registration Rights Agreement or any other agreement with or for the benefit of the Holders or the Trustee, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration pursuant to Section 6.02, redemption or otherwise.  Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

Each Guarantor hereby agrees that its obligations with regard to its Note Guarantee shall be joint and several, unconditional, irrespective of the validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.  Each Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies,

 

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including but not limited to:  (a) any right to require any of the Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of payment or performance by such Guarantor, to (1) proceed against the Company, any other guarantor (including any other Guarantor) of the Obligations under the Note Guarantees or any other Person, (2) proceed against or exhaust any security held from the Company, any such other guarantor or any other Person, (3) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Company or any other Person, or (4) pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Note Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of the Obligations under the Note Guarantees; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Benefited Party’s errors or omissions in the administration of the Obligations under the Note Guarantees, except behavior which amounts to bad faith; (e)(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Note Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Note Guarantees, notices of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations under the Note Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule and (h) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Note Guarantees.  Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05, each Guarantor hereby covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in its Note Guarantee and this Indenture.

 

If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee.  The Guarantors shall have the right to seek contribution from any non-paying Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the net assets of all the Guarantors at the time of such payment in accordance with GAAP, so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.

 

Section 10.02.              Limitation on Guarantor Liability.

 

(a)   Each Guarantor and, by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that each Guarantor’s liability shall be that amount from time to time equal to the aggregate liability of such Guarantor under the Note Guarantee, but shall be limited to the lesser of (a) the aggregate amount of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which would not have

 

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(1) rendered the Guarantor “insolvent” (as such term is defined in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time its Note Guarantee was entered into, after giving effect to the incurrence of existing Indebtedness immediately before such time; provided, however, it shall be a presumption in any lawsuit or proceeding in which a Guarantor is a party that the amount guaranteed pursuant to the Note Guarantee is the amount described in clause (a) above unless any creditor, or representative of creditors of the Guarantor, or debtor in possession or Trustee in bankruptcy of the Guarantor, otherwise proves in a lawsuit that the aggregate liability of the Guarantor is limited to the amount described in clause (b).

 

(b)   In making any determination as to the solvency or sufficiency of capital of a Guarantor in accordance with the proviso of Section 10.2(a), the right of each Guarantor to contribution from other Guarantors and any other rights such Guarantor may have, contractual or otherwise, shall be taken into account.

 

Section 10.03.              Execution and Delivery of Guarantee.

 

To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that this Indenture shall be entered into on behalf of such Guarantor by an Officer of such Guarantor.

 

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

 

If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note. the Note Guarantee shall be valid nevertheless.

 

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

 

The Company hereby agrees that it shall cause each Person that becomes obligated to provide a Note Guarantee pursuant to Section 4.17 hereof to execute a supplemental indenture in form and substance reasonably satisfactory to the Trustee, pursuant to which such Person provides the Note Guarantee set forth in this Article 10 and otherwise assumes the obligations and accepts the rights of a Guarantor under this Indenture, in each case with the same effect and to the same extent as if such Person had been named herein as a Guarantor.

 

Section 10.04.              Guarantors May Consolidate, etc., on Certain Terms.

 

(a)   Subject to the limitations set forth in this Article 10, no Guarantor will, and the Company will not permit any Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:

 

(1)           (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of such Guarantor, as applicable, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such surviving Guarantor or such Person, as the case may be, being herein called the “Successor Person”);

 

(B) the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantor’s related Note Guarantee pursuant to supplemental indentures or other agreements in form satisfactory to the Trustee;

 

(C) immediately after such transaction, no Default exists; and

 

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(D) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with this Indenture;

 

(2) the transaction is made in compliance with the first paragraph of Section 4.12; or

 

(3) such property or assets constitute Equity Interests of Restricted Subsidiaries that are not Guarantors, which Equity Interests are sold, assigned, transferred, leased, conveyed or otherwise disposed to Restricted Subsidiaries that are not Guarantors.

 

(b)   In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor.

 

(c)   Except as set forth in Articles 4 and 5, and notwithstanding clauses (a) and (b) above, any Guarantor may (1) merge, amalgamate or consolidate with or into, wind up into or transfer all or part of its properties and assets to another Guarantor or the Company, (2) merge with an Affiliate of the Company solely for the purpose of reincorporating the Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof, (3) convert into a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor or (4) liquidate or dissolve or change its legal form if the Company determines in good faith that such action is in the best interests of the Company.

 

Section 10.05.              Releases.

 

(a)   The Note Guarantee of a Guarantor will be automatically and unconditionally released and discharged:

 

(1) in connection with any sale of all of the Capital Stock of a Guarantor to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary of the Company, if the sale of all such Capital Stock of that Guarantor complies with Section 4.12;

 

(2) if the Company designates any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary pursuant to the Indenture;

 

(3) in connection with the release or discharge of such Guarantor under the Credit Agreement or the guarantee which resulted in the creation of such Note Guarantee, except a release or discharge by or as a result of payment under such guarantee (it being understood that a release subsequent to a contingent reinstatement is still a release); and

 

(4) upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 or satisfaction and discharge of this Indenture in accordance with Article 11.

 

(b)   Any Guarantor not released from its obligations under its Note Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10.

 

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ARTICLE 11.

 

SATISFACTION AND DISCHARGE

 

Section 11.01.              Satisfaction and Discharge.

 

This Indenture will be discharged and will cease to be of further effect, except as to surviving right of registration of transfer or exchange of the Notes, as to all Notes issued hereunder, when either:

 

(1)   all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or

 

(2)           (a) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and accrued interest and Additional Interest, if any, to the date of maturity or redemption as the case may be; provided, however, that with respect to a redemption of all or any portion of the Notes, at once or over time, at any time prior to December 1, 2014 pursuant to paragraph 5 of the Notes and Section 3.07:

 

(i)            the amount of funds in trust that the Company must irrevocably deposit or cause to be deposited shall be determined using an assumed Make-Whole Premium calculated as of the date of deposit of such funds in trust; and

 

(ii)           at the time of deposit of such funds in trust, the funds in trust would be sufficient to pay and discharge the principal, premium, if any, and interest on the Notes and Additional Interest, if any, on the applicable date of redemption with an assumed Make-Whole Premium calculated as of the date of deposit of such funds in trust; and

 

(iii)          the Company must irrevocably deposit or cause to be deposited additional funds in trust, as necessary, on the applicable date of redemption, as required by Section 3.05, necessary to pay the Make-Whole Premium as determined on such date;

 

(b)   no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar and any simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) and such deposit will not result in a breach or violation of, or constitute a default under, any other material instrument (other than this Indenture) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);

 

(c)   the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

 

(d)   the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.

 

In addition, the Company will deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge of this Indenture have been satisfied.

 

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Section 11.02.

 

Deposited Cash and U.S. Government Securities to be Held in Trust; Other Miscellaneous Provisions.

 

Subject to Section 11.03, all cash and non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 11.02, the “Trustee”) pursuant to Section 11.01 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest and Additional Interest, if any, but such cash and securities need not be segregated from other funds except to the extent required by law.

 

Section 11.03.

 

Repayment to Company.

 

Any cash or non-callable U.S. Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest and Additional Interest, if any, on, any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest and Additional Interest, if any, has become due and payable shall be paid to the Company on its request unless an abandoned property law designates another person or (if then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as an unsecured creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in The New York Times or The Wall Street Journal (national edition), notice that such cash and securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such cash and securities then remaining shall be repaid to the Company.

 

ARTICLE 12.

 

MISCELLANEOUS

 

Section 12.01.

 

Trust Indenture Act Controls.

 

If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the provision required by the TIA shall control.

 

Section 12.02.

 

Notices.

 

Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next-day delivery, to the other’s address:

 

If to the Company or any Guarantor:

 

ClubCorp Club Operations, Inc.,

3030 LBJ Freeway

Dallas, Texas 75234

Attention:  Curt McClellan, Chief Financial Officer

Fax No.: (972) 888-7717

 

94


 

With a copy to:

 

Simpson Thacher & Bartlett LLP

2550 Hanover Street

Palo Alto, California 94304

Attention: William B. Brentani

Fax No.: (651) 251-5022

 

If to the Trustee:

 

Wilmington Trust FSB

246 Goose Lane, Suite 105

Guilford, Connecticut 06437

Attention: Joseph O’Donnell

Fax No.:  (203) 453-1183

 

The Company or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications.

 

All notices and communications (other than those sent to the Trustee or Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery.  All notices and communications to the Trustee or Holders shall be deemed duly given and effective only upon receipt.

 

Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to its address shown on the Security Register.  Any notice or communication shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

 

If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

 

If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

 

Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC for such Note (or its designee), pursuant to the customary procedures of DTC.

 

Section 12.03.              Communication by Holders of Notes with Other Holders of Notes.

 

Holders may communicate pursuant to TIA §312(b) with other Holders with respect to their rights under this Indenture or the Notes.  The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA §312(c).

 

Section 12.04.              Certificate and Opinion as to Conditions Precedent.

 

Upon any request or application by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee:

 

95


 

(a)   an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; provided that an Officer’s Certificate shall not be required in connection with the issuance of Notes on the Issue Date; and

 

(b)   an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with; provided that an Opinion of Counsel shall not be required in connection with (i) the issuance of Notes on the Issue Date or (ii) the execution and delivery by a Guarantor and the Trustee of a supplemental indenture to this Indenture in the form of Exhibit D.

 

Section 12.05.              Statements Required in Certificate or Opinion.

 

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) shall comply with the provisions of TIA §314(e) and shall include:

 

(a)   a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(b)   a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(c)   a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(d)   a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

 

With respect to matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate, certificates of public officials or reports or opinions of experts.

 

Section 12.06.              Rules by Trustee and Agents.

 

The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

Section 12.07.              No Personal Liability of Directors, Officers, Employees and Stockholders.

 

No director, officer, employee, incorporator, stockholder or equityholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or of the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.   The waiver and release may not be effective to waive or release liabilities under the federal securities laws.

 

Section 12.08.              Governing Law; Waiver of Jury Trial.

 

THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES.  EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING

 

96


 

OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY AND THEREBY.

 

Section 12.09.              No Adverse Interpretation of Other Agreements.

 

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

Section 12.10.              Successors.

 

All covenants and agreements of the Company in this Indenture and the Notes shall bind its successors.  All covenants and agreements of the Trustee in this Indenture shall bind its successors.

 

Section 12.11.              Severability.

 

In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 12.12.              Counterpart Originals.

 

The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

Section 12.13.              Table of Contents, Headings, etc.

 

The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

Section 12.14.              Force Majeure.

 

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

 

[Signatures on following page]

 

97

 

SIGNATURES

 

Dated as of November 30, 2010

 

 

 

 

Company:

 

 

 

ClubCorp Club Operations, Inc.

 

 

 

By:

/s/ Ingrid J. Keiser

 

Name:

Ingrid J. Keiser

 

Title:

Secretary

 

 

SIGNATURE PAGES TO THE SENIOR NOTE INDENTURE

 


 

 

 

Guarantors:

 

 

 

191 Athletic Club Management Company, LLC

 

191 CC Operating Co., LLC

 

Akron Management Corp.

 

Aliso Viejo Golf Club Joint Venture

 

Anthem Golf, LLC

 

April Sound Management Corp.

 

Aspen Glen Golf Club Management Company

 

Athletic Club at the Equitable Center, Inc.

 

AZ Club, LLC

 

Barton Creek Resort & Clubs, Inc.

 

Bay Oaks Country Club, Inc.

 

Bluegrass Club, LLC

 

Brookhaven Country Club, Inc.

 

Capital City Club of Montgomery, Inc.

 

Capital City Club of Raleigh, Inc.

 

CCA Golf Course Holdco, LLC

 

CCA Mezzanine Holdco, LLC

 

Centre Club, Inc.

 

Citrus Club, Inc.

 

City Club of Washington, Inc.

 

Club at Boston College, Inc.

 

Club Le Conte, Inc.

 

ClubCorp — Asia

 

ClubCorp Airways Golf, Inc.

 

ClubCorp Aliso Viejo Holding Corp.

 

ClubCorp Asia Investments Inc.

 

ClubCorp Aven Holdings, Inc.

 

ClubCorp Braemar Country Club, Inc.

 

ClubCorp Bunker Hill Club, Inc.

 

ClubCorp Buying Services, Inc.

 

ClubCorp Canyon Crest Country Club, Inc.

 

ClubCorp Center Club, Inc.

 

ClubCorp Coto Property Holdings, Inc.

 

ClubCorp Crow Canyon Management Corp.

 

ClubCorp Desert Falls Country Club, Inc.

 

ClubCorp Financial Management Company

 

ClubCorp GCL Corporation

 

ClubCorp Gen Par of Texas, L.L.C.

 

ClubCorp Golf of California, L.L.C.

 

ClubCorp Golf of Florida, L.L.C.

 

ClubCorp Golf of Georgia, L.P.

 

ClubCorp Golf of North Carolina, L.L.C.

 

ClubCorp Golf of Texas, L.P.

 

ClubCorp Granite Bay Management, Inc.

 

ClubCorp Graphics, Inc.

 

ClubCorp Hamlet, LLC

 

ClubCorp International, Inc.

 

ClubCorp IW Golf Club, Inc.

 

ClubCorp Management Company for Stone Creek, LLC

 

ClubCorp Mexico, Inc.

 

ClubCorp Mezzanine Borrower, LLC

 

ClubCorp Mission Hills Country Club, Inc.

 

ClubCorp Mortgage Borrower, LLC

 

ClubCorp Porter Valley Country Club, Inc.

 

 

SIGNATURE PAGES TO SENIOR NOTE INDENTURE

 


 

 

ClubCorp Publications, Inc.

 

ClubCorp San Jose Club, Inc.

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

ClubCorp Symphony Towers Club, Inc.

 

ClubCorp Teal Bend Golf Club, Inc.

 

ClubCorp TTC, LLC

 

ClubCorp Turkey Creek Golf Club, Inc.

 

ClubCorp USA, Inc.

 

ClubCorp Willow Creek, LLC

 

ClubCorp Wind Watch, LLC

 

Columbia Capital City Club Corp.

 

Columbia Tower Club, Inc.

 

Countryside Country Club, Inc.

 

Currituck Golf, LLC

 

Dallas Tower Club, Inc.

 

Dayton Racquet Club, Inc.

 

DeBary Management Corp.

 

Diamante’ Golf Club Management, Inc.

 

Diamante’ Golf Club Partners, Inc.

 

Diamond Run Club, Inc.

 

Empire Ranch, LLC

 

Fair Oaks Club Corp.

 

Farms of New Kent Management, LLC

 

FFFC Golf Acquisitions, L.L.C.

 

First City Club Management, Inc.

 

Fort Bend Acquisition Corp.

 

GCC Asset Management, Inc.

 

Glendale Management Corp.

 

Glendale Racquet Club, Inc.

 

GP Bear’s Best Atlanta, Inc.

 

GRanch Golf Club, Inc.

 

Greenbrier Country Club, Inc.

 

Greenspoint Club, Inc.

 

Hackberry Creek Country Club, Inc.

 

Haile Plantation Management Corp.

 

Harbour Club of Charleston, Inc.

 

Hearthstone Country Club, Inc.

 

Hill Country Golf, Inc.

 

Hills II of Lakeway, Inc.

 

Houston City Club, Inc.

 

HPG, L.C.

 

Hunter’s Green Acquisition Corp.

 

Indigo Run Asset Corp.

 

Irving Club Acquisition Corp.

 

Kingwood Country Club, Inc.

 

Knollwood Country Club, Inc.

 

La Cima Club, Inc.

 

Lakeway Clubs, Inc.

 

Laurel Springs Holdco, LLC

 

LionsGate Golf Club, Inc.

 

MAC Club, LLC

 

Management Company for Eagle Ridge and The

 

Preserve

 

Manager for CCHH, Inc.

 

Master Club, Inc.

 

 

SIGNATURE PAGES TO SENIOR NOTE INDENTURE

 


 

 

Memorial Stadium Club Management Corp.

 

Memphis City Club, Inc.

 

MH Villas, Inc.

 

Monarch EP Management Corp.

 

Nashville Club Management, Inc.

 

New England Country Club Management, Inc.

 

Northwood Management Corp.

 

Oak Pointe Country Club, Inc.

 

Oakmont Management Corp.

 

Operations Company for Homestead, Inc.

 

Owners Club Asset Company

 

Piedmont Club, Inc.

 

Piedmont Golfers’ Club LLC

 

Pyramid Club Management, Inc.

 

Quail Hollow Management, Inc.

 

Queens Harbour Corporation

 

Renaissance Club, Inc.

 

Richardson Country Club Corp.

 

River Creek Country Club, Inc.

 

Rivers Club, Inc.

 

Shady Valley Management Corp.

 

Shoreby Club Management, Inc.

 

Silver Lake Management Corp.

 

Skyline Club, Inc.

 

Society Management, Inc.

 

Southern Trace Country Club of Shreveport, Inc.

 

Stonebriar Management Corp.

 

Stonehenge Club, Inc.

 

Tampa Palms Club, Inc.

 

The 191 Club, Inc.

 

The Buckhead Club, Inc.

 

The Club at Cimarron, Inc.

 

The Club at Society Center, Inc.

 

The Commerce Club, Inc.

 

The Downtown Club, Inc.

 

The Manager of the Owner’s Club, Inc.

 

The Metropolitan Club of Chicago, Inc.

 

The Owner’s Club, Inc.

 

The Owner’s Club at Hilton Head, L.P.

 

The Owner’s Club of South Carolina, L.L.C.

 

The Plaza Club of San Antonio, Inc.

 

The Summit Club, Inc.

 

The University Club, Inc.

 

Timarron Golf Club, Inc.

 

Tower City Club of Virginia, Inc.

 

Tower Club of Dallas, Inc.

 

Tower Club, Inc.

 

Town Point Club, Inc.

 

Treesdale Country Club, Inc.

 

UMass Club Management, LLC

 

UNC Alumni Club Management, Inc.

 

University Club Management Co., Inc.

 

University Club, Inc.

 

Walnut Creek Management Corporation

 

West Park Club, Inc.

 

Westlake City Club, Inc.

 

 

SIGNATURE PAGES TO SENIOR NOTE INDENTURE

 


 

 

Wildflower Country Club, Inc.

 

Willow Creek Management, Inc.

 

Woodside Plantation Country Club, Inc.

 

By:

/s/ Ingrid J. Keiser

 

Name:

Ingrid J. Keiser

 

Title:

Secretary

 

 

 

 

 

Canyon Gate at Las Vegas, Inc.

 

GP Bear’s Best Las Vegas, Inc.

 

By:

/s/ Eric L. Affeldt

 

Name:

Eric L. Affeldt

 

Title:

President, Treasurer and Secretary

 

 

SIGNATURE PAGES TO SENIOR NOTE INDENTURE

 


 

 

Trustee:

 

 

 

Wilmington Trust FSB

 

 

 

 

 

By:

/s/ Joseph P. O’Donnell

 

 

Name:

Joseph P. O’Donnell

 

 

Title:

Vice President

 

 

SIGNATURE PAGES TO SENIOR NOTE INDENTURE

 

 

EXHIBIT A

 

(Face of Note)

 

10% Senior Notes due 2018

 

 

 

CUSIP               

 

No.

 

$[             ]

 

 

ClubCorp Club Operations, Inc.

 

promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of [                            ] Dollars ($[            ]) on December 1, 2018.

 

Interest Payment Dates:  June 1 and December 1, commencing June 1, 2011.

 

Record Dates:  May 15 and November 15.

 

Dated: [           ]

 

 

IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer.

 

 

 

CLUBCORP CLUB OPERATIONS, INC.

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

This is one of the Global

 

Notes referred to in the

 

within-mentioned Indenture:

 

 

 

WILMINGTON TRUST FSB,

 

as Trustee

 

 

 

By:

 

 

 

Authorized Signatory

 

 

 

Dated: [         ]

 

 

A-1


 

(Back of Note)

 

10% Senior Notes due 2018

 

[Insert the Global Note Legend, if applicable, pursuant to the terms of the Indenture]

 

[Insert the Private Placement Legend, if applicable, pursuant to the terms of the Indenture]

 

[Insert the Regulation S Temporary Global Note Placement Legend, if applicable, pursuant to the terms of the Indenture]

 

[Insert the Tax Legend, if applicable, pursuant to the terms of the Indenture]

 

Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

1.                                       Interest.  ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 10% per annum until maturity and shall pay Additional Interest, if any, as provided in Section 8 of the Registration Rights Agreement.  The Company shall pay interest semi-annually on June 1 and December 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”).  Interest shall accrue from the most recent date to which interest has been paid on the Notes (or one or more Predecessor Notes) or, if no interest has been paid, from November 30, 2010; provided, however, that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be June 1, 2011.  The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time at a rate that is equal to the interest rate then in effect under this Note; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest, if any (without regard to any applicable grace periods), from time to time at the same rate to the extent lawful.  Interest shall be computed on the basis of a 360-day year of twelve 30-day months.

 

2.                                       Method of Payment.  The Company shall pay interest on the Notes (except defaulted interest) to the Persons in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the May 15 or November 15 next preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.  The Notes shall be payable as to principal, premium, if any, and interest and Additional Interest, if any, at the office or agency of the Company maintained for such purpose, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the Security Register; provided, however, that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest and Additional Interest, if any, and premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent.  Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

3.                                       Paying Agent and Registrar.  Initially, Wilmington Trust FSB, the Trustee under the Indenture, shall act as Paying Agent and Registrar.  The Company may change any Paying Agent or Registrar without notice to any Holder.  The Company or any of its Subsidiaries may act in any such capacity.

 

4.                                       Indenture.  The Company issued the Notes under an Indenture dated as of November 30, 2010 (“Indenture”) among the Company, the guarantors party thereto (the “Guarantors”) and the Trustee.  The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).  The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms.  To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.  The Notes are obligations of the Company unlimited in aggregate principal amount.

 

A-2


 

5.                                       Redemption and Repurchase.  The Notes are subject to optional redemption, and may be subject to an Offer to Purchase, as further described in the Indenture.  The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

6.                                       Denominations, Transfer, Exchange.  The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000.  This Note shall represent the aggregate principal amount of outstanding Notes from time to time endorsed hereon and the aggregate principal amount of Notes represented hereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.  The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture.  The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part.  Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

 

[This Regulation S Temporary Global Note is exchangeable in whole or in part for one or more Global Notes only (i) on or after the termination of the Distribution Compliance Period and (ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.  Upon exchange of this Regulation S Temporary Global Note for one or more Global Notes, the Trustee shall cancel this Regulation S Temporary Global Note.]

 

7.                                       Persons Deemed Owners.  The registered Holder of a Note will be treated as its owner for all purposes.

 

8.                                       Amendment, Supplement and Waiver.  The Indenture, the Note Guarantees or the Notes may be amended or supplemented as provided in the Indenture.

 

9.                                       Defaults and Remedies.  Upon the occurrence of an Event of Default, the rights and obligations of the Company, the Guarantors, the Trustee and the Holders shall be set forth in the applicable provisions of the Indenture.

 

10.                                 Authentication.  This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

11.                                 Abbreviations.  Customary abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

12.                                 [Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes that are Initial Notes shall have all the rights set forth in the Registration Rights Agreement, dated November 30, 2010, between the Company and the parties named on the signature pages thereto or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes shall have the rights set forth in one or more registration rights agreement, if any, among the Company and the other parties thereto, relating to rights given by the Company to the purchasers of any Additional Notes.]

 

13.                                 CUSIP Numbers.  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

 

A-3


 

The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway

Dallas, Texas 75234

Attention:  Chief Financial Officer

 

14.                               Governing Law.  The internal law of the State of New York shall govern and be used to construe this Note.

 

A-4


 

Option of Holder to Elect Purchase

 

If you want to elect to have this Note purchased by the Company pursuant to Section 4.12 or 4.16 of the Indenture, check the box below:

 

o                                    Section 4.12

 

o                                    Section 4.16

 

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.12 or Section 4.16 of the Indenture, state the amount you elect to have purchased:  $

 

Date:

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the Note)

 

 

 

Tax Identification No.:

 

 

 

 

 

 

 

SIGNATURE GUARANTEE:

 

 

 

 

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

A-5


 

Assignment Form

 

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to

 

 

 

(Insert assignee’s social security or other tax I.D. no.)

 

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint

 

as agent to transfer this Note on the books of the Company.  The agent may substitute another to act for him.

 

 

Date:

 

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

 

 

Signature Guarantee:

 

 

A-6


 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE

 

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

 

Amount of
decrease in
Principal Amount
of this Global Note

 

Amount of increase
in Principal Amount
of this Global Note

 

Principal Amount
of this Global Note
following such
decrease (or
increase)

 

Signature of
authorized signatory
of Trustee or
Note Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A-7

 

EXHIBIT B

 

FORM OF CERTIFICATE OF TRANSFER

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway

Dallas, Texas 75234

 

Wilmington Trust FSB

246 Goose Lane, Suite 105

Guilford, Connecticut 06437

Attention: Corporate Trust Department

 

Re:                                                  10% Senior Notes due 2018

 

Reference is hereby made to the Indenture, dated as of November 30, 2010 (the “Indenture”), among ClubCorp Club Operations, Inc., as issuer (the “Company”), the Guarantors party thereto and Wilmington Trust FSB, as trustee.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

                                      , (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $                       in such Note[s] or interests (the “Transfer”), to                                                     (the “Transferee”), as further specified in Annex A hereto.  In connection with the Transfer, the Transferor hereby certifies that:

 

[CHECK ALL THAT APPLY]

 

1.  o  Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A.  The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the Securities Act.

 

2.  o  Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(a) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Distribution Compliance Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser).  Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note, the Regulation S Temporary Global Note and/or the Definitive Note and in the Indenture and the Securities Act.

 

B-1


 

3.  o  Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

 

(a)                                  o  such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

 

or

 

(b)                                 o  such Transfer is being effected to the Company or a subsidiary thereof;

 

or

 

(c)                                  o  such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

 

4.  o  Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.

 

(a)  o  Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

(b)  o  Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

(c)  o  Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 

 

 

[Insert Name of Transferor]

 

B-2


 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

Dated:

 

 

B-3


 

ANNEX A TO CERTIFICATE OF TRANSFER

 

1.                                       The Transferor owns and proposes to transfer the following:

 

[CHECK ONE OF (a) OR (b)]

 

(a)                                  o   a beneficial interest in the:

 

(i)                                o   144A Global Note (CUSIP                   ), or

 

(ii)                            o   Regulation S Global Note (CUSIP                   ); or

 

(b)                                 o   a Restricted Definitive Note.

 

2.                                       After the Transfer the Transferee will hold:

 

[CHECK ONE OF (a), (b) OR (c)]

 

(a)                                  o   a beneficial interest in the:

 

(i)                                o   144A Global Note (CUSIP                   ), or

 

(ii)                            o   Regulation S Global Note (CUSIP                   ), or

 

(iv)                         o   Unrestricted Global Note (CUSIP                   ); or

 

(b)                                 o   a Restricted Definitive Note; or

 

(c)                                  o   an Unrestricted Definitive Note,

 

in accordance with the terms of the Indenture.

 

B-4


 

EXHIBIT C

 

FORM OF CERTIFICATE OF EXCHANGE

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway

Dallas, Texas 75234

 

Wilmington Trust FSB

246 Goose Lane, Suite 105

Guilford, Connecticut 06437

Attention: Corporate Trust Department

 

Re:                                                  10% Senior Notes due 2018

 

Reference is hereby made to the Indenture, dated as of November 30, 2010 (the “Indenture”), among ClubCorp Club Operations, Inc., as issuer (the “Company”), the Guarantors party thereto and Wilmington Trust FSB, as trustee.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

                                                    , (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $                         in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner hereby certifies that:

 

1.                                       Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

 

(a)  o  Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Note and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(b)  o  Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Note and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(c)  o  Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(d)  o  Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted

 

C-1


 

Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

2.                                       Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

 

(a)  o  Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

 

(b)  o  Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CIRCLE ONE] 144A Global Note, Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Definitive Note and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

 

C-2


 

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 

 

 

[Insert Name of Transferor]

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

Dated:

 

 

C-3

 

EXHIBIT D

 

FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS

 

Supplemental Indenture (this “Supplemental Indenture”), dated as of [                    ] [    ], 20[    ], among [                                    ] (the “Guaranteeing Subsidiary”), a subsidiary of ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), and Wilmington Trust FSB, as trustee (the “Trustee”).

 

W I T N E S S E T H

 

WHEREAS, each of the Company and the Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of November 30, 2010, providing for the issuance of an unlimited aggregate principal amount of 10% Senior Notes due 2018 (the “Notes”);

 

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

 

1.             Capitalized Terms.  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

2.             Guarantor.  The Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including Article 10 thereof.

 

3.             Governing Law.  THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.

 

4.             Waiver of Jury Trial.  EACH OF THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

5.             Counterparts.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

6.             Headings.  The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

7.             Trustee Makes No Representation. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.

 

D-1


 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 

 

 

[NAME OF GUARANTEEING SUBSIDIARY]

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

WILMINGTON TRUST FSB, as Trustee

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

D-2


 

CROSS-REFERENCE TABLE

 

TIA Section
Reference

 

Indenture 
Section

310(a)(1)

 

7.10

(a)(2)

 

7.10

(a)(3)

 

N.A.

(a)(4)

 

N.A.

(a)(5)

 

7.10

(b)

 

7.08, 7.10

(c)

 

N.A.

311(a)

 

7.11

(b)

 

7.11

(c)

 

N.A.

312(a)

 

2.05

(b)

 

12.03

(c)

 

12.03

313(a)

 

7.06

(b)(1)

 

N.A.

(b)(2)

 

7.06, 7.07

(c)

 

7.06, 12.02

(d)

 

7.06

314(a)

 

4.03, 4.04, 12.02

(b)

 

N.A.

(c)(1)

 

12.04

(c)(2)

 

12.04

(c)(3)

 

N.A.

(d)

 

N.A.

(e)

 

12.05

315(a)

 

7.01

(b)

 

7.05, 12.02

(c)

 

7.01

(d)

 

7.01

(e)

 

6.11

316(a) (last sentence)

 

2.09

(a)(1)(A)

 

6.05

(a)(1)(B)

 

6.04

(a)(2)

 

N.A.

(b)

 

6.07

317(a)(1)

 

6.08

(a)(2)

 

6.09

(b)

 

2.04

318(a)

 

12.01

 

N.A. means Not Applicable.

 

Note:  This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.

 


 EX-4.3 345 a2202241zex-4_3.htm EX-4.3

Exhibit 4.3

 

ClubCorp Club Operations, Inc.

 

$415,000,000

 

10% Senior Notes due 2018

 

REGISTRATION RIGHTS AGREEMENT

 

November 30, 2010

 

Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013

 

Ladies and Gentlemen:

 

ClubCorp Club Operations, Inc., a corporation organized under the laws of the State of Delaware (the “Company”), proposes to issue and sell to you (the “Initial Purchaser”), $415,000,000 principal amount of its 10% Senior Notes due 2018 (the “Securities”), upon the terms and conditions set forth in the Purchase Agreement, dated November 22, 2010, among the Company, the Guarantors and you (the “Purchase Agreement”) relating to the initial placement (the “Initial Placement”) of the Securities.  The Securities will be fully and unconditionally guaranteed (the “Guarantees”) by each of the Company’s wholly-owned subsidiaries that are guarantors (collectively, the “Guarantors”) under the Company’s New Credit Facility.  To induce you to enter into the Purchase Agreement and to satisfy a condition to your obligations thereunder, the Company and the Guarantors agree with you for your benefit and the benefit of the holders from time to time of the Securities (including the Initial Purchaser) (each a “Holder” and, collectively, the “Holders”), as follows:

 

1.                                       Definitions.  Capitalized terms used herein without definition shall have their respective meanings set forth in the Purchase Agreement.  As used in this Agreement, the following capitalized defined terms shall have the following meanings:

 

“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Additional Interest” shall have the meaning set forth in Section 8 hereof.

 

“Affiliate” shall have the meaning specified in Rule 405 under the Act and the terms “controlling” and “controlled” shall have meanings correlative thereto.

 

“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.

 


 

“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.

 

“Closing Date” shall mean the date of the first issuance of the Securities.

 

“Commission” shall mean the Securities and Exchange Commission.

 

“Deferral Period” shall have the meaning indicated in Section 4(k)(ii) hereof.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Exchange Offer Registration Period” shall mean the 90 day period following the consummation of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in effect suspending the effectiveness of the Exchange Offer Registration Statement.

 

“Exchange Offer Registration Statement” shall mean a registration statement of the Company on an appropriate form under the Act with respect to the Registered Exchange Offer, all amendments and supplements to such registration statement, including post-effective amendments thereto, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

 

“Exchanging Dealer” shall mean any Holder (which may include the Initial Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its own account as a result of market-making activities or other trading activities (but not directly from the Company or any Affiliate of the Company) for New Securities.

 

“Final Memorandum” shall mean the offering memorandum, dated November 22, 2010, relating to the Securities, including any and all exhibits thereto and any information incorporated by reference therein as of such date.

 

“FINRA” shall mean the Financial Industry Regulatory Authority, Inc.

 

“Holder” shall have the meaning set forth in the preamble hereto.

 

“Indenture” shall mean the Indenture relating to the Securities, dated as of November 30, 2010, among the Company, the Guarantors and Wilmington Trust FSB, as trustee, as the same may be amended from time to time in accordance with the terms thereof.

 

“Initial Placement” shall have the meaning set forth in the preamble hereto.

 

“Initial Purchaser” shall have the meaning set forth in the preamble hereto.

 

“Losses” shall have the meaning set forth in Section 6(d) hereof.

 

2


 

“Majority Holders” shall mean, on any date, Holders of a majority of the aggregate principal amount of Securities registered under a Registration Statement.

 

“Managing Underwriters” shall mean the investment banker or investment bankers and manager or managers that administer an underwritten offering, if any, under a Registration Statement.

 

“New Securities” shall mean debt securities of the Company and the Guarantors evidencing the same continuing indebtedness as the Securities and identical in all material respects to the Securities (except that the transfer restrictions shall be modified or eliminated, as appropriate and no Additional Interest shall apply thereto) to be issued under the Indenture.

 

“Prospectus” shall mean the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A or 430C under the Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Securities or the New Securities covered by such Registration Statement, and all amendments and supplements thereto, including any and all exhibits thereto and any information incorporated by reference or deemed to be incorporated by reference therein.

 

“Purchase Agreement” shall have the meaning set forth in the preamble hereto.

 

“Registered Exchange Offer” shall mean the proposed offer of the Company and the Guarantors to issue and deliver to the Holders of the Securities that are not prohibited by any law or policy of the Commission from participating in such offer, in exchange for the Securities, a like aggregate principal amount of the New Securities evidencing the same continuing indebtedness.

 

“Registrable Securities” shall mean the Securities; provided that the Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect to such Securities has become effective under the Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) when such Securities are sold pursuant to Rule 144 under the Act or any successor rule or regulation thereto that may be adopted by the Commission, (iii) when such Securities cease to be outstanding, (iv) except in the case of Securities that otherwise remain Registrable Securities and that are held by the Initial Purchaser and that are ineligible to be exchanged in the Exchange Offer, when the Exchange Offer is consummated, and (v) on the second anniversary of this Agreement.

 

“Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf Registration Statement that covers any of the Securities or the New Securities pursuant to the provisions of this Agreement, any amendments and supplements to such registration statement, including post-effective amendments (in each case including the Prospectus contained therein), all exhibits thereto and all material incorporated by reference therein.

 

“Securities” shall have the meaning set forth in the preamble hereto.

 

3


 

“Shelf Registration” shall mean a registration effected pursuant to Section 3 hereof.

 

“Shelf Registration Period” has the meaning set forth in Section 3(b)(ii) hereof.

 

“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and the Guarantors pursuant to the provisions of Section 3 hereof which covers some or all of the Securities or New Securities, as applicable, on an appropriate form under Rule 415 under the Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

 

“Trustee” shall mean the trustee with respect to the Securities under the Indenture.

 

“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Underwriter” shall mean any underwriter of Securities in connection with an offering thereof under a Shelf Registration Statement.

 

2.                                       Registered Exchange Offer.  (a)  Unless the Registered Exchange Offer would violate applicable law or any applicable interpretation of the Commission, the Company shall prepare and use its commercially reasonable best efforts to file with the Commission the Exchange Offer Registration Statement with respect to the Registered Exchange Offer.  The Company and the Guarantors shall use their respective commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Act within 360 days of the Closing Date (the “Exchange Offer Effectiveness Date”).  The Company and the Guarantors shall use their respective commercially reasonable best efforts to cause the exchange of the Securities no later than 30 Business Days after the effective date of the Exchange Offer Registration Statement (the “Exchange Offer Completion Date”).

 

(b)                                 Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder electing to exchange Securities for New Securities (assuming that such Holder is (i) not an Affiliate of the Company, (ii) acquires the New Securities in the ordinary course of such Holder’s business, (iii) has no arrangements with any person to participate in the distribution of the New Securities, (iv) is not the Initial Purchaser holding the Securities that have the status of an unsold allotment remaining from the initial distribution of the Securities, and (v) is not otherwise prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such New Securities from and after their receipt without any limitations or restrictions under the Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States.

 

(c)                                  In connection with the Registered Exchange Offer, the Company and the Guarantors shall:

 

4


 

(i)                                     mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

 

(ii)                                  keep the Registered Exchange Offer open for not less than 20 Business Days and not more than 30 Business Days after the date notice thereof is mailed to the Holders (or, in each case, longer if required by applicable law);

 

(iii)                               use their respective commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective under the Act, supplemented and amended as required under the Act, to ensure that it is available for sales of New Securities by Exchanging Dealers during the Exchange Offer Registration Period;

 

(iv)                              utilize the services of a depositary for the Registered Exchange Offer, which may be the Trustee or an Affiliate of the Trustee;

 

(v)                                 permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day on which the Registered Exchange Offer is open;

 

(vi)                              prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Company and the Guarantors are conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted by Shearman & Sterling LLP (dated July 2, 1993); and (B) including a representation that the Company and the Guarantors have not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Registered Exchange Offer and that, to the best of the Company’s and the Guarantors’ information and belief without independent investigation, each Holder participating in the Registered Exchange Offer is acquiring the New Securities in the ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the New Securities; and

 

(vii)                           comply in all respects with all applicable laws.

 

(d)                                 As soon as practicable after the close of the Registered Exchange Offer, the Company and the Guarantors shall:

 

(i)                                     accept for exchange all Securities tendered and not validly withdrawn pursuant to the Registered Exchange Offer;

 

(ii)                                  deliver to the Trustee for cancellation in accordance with Section 4(s) all Securities so accepted for exchange; and

 

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(iii)                               cause the Trustee promptly to authenticate and deliver to each Holder of Securities a principal amount of New Securities equal to the principal amount of the Securities of such Holder so accepted for exchange; provided that, in the case of any Securities held in global form by a depository, authentication and delivery to such depository of one or more replacement Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.

 

(e)                                  Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Registered Exchange Offer to participate in a distribution of the New Securities (x) can not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K or any successor provisions under the Act if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company, the Guarantors or one of their Affiliates.  Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Guarantors in writing (which may be contained in the applicable letter of transmittal) that, at the time of the consummation of the Registered Exchange Offer:

 

(i)                                     any New Securities received by such Holder will be acquired in the ordinary course of business;

 

(ii)                                  such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities or the New Securities within the meaning of the Act;

 

(iii)                               such Holder is not an Affiliate of the Company; and

 

(iv)                              if such Holder is an Exchanging Dealer, then such Holder will comply with the applicable provisions of the Act (including, but not limited to, the Prospectus delivery requirement thereunder) in connection with a sale of any Securities received by such Holder pursuant to the Registered Exchange Offer.

 

(f)                                    If the Initial Purchaser determines that it is not eligible to participate in the Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of the Initial Purchaser, the Company and the Guarantors shall issue and deliver to the Initial Purchaser or the person purchasing New Securities registered under a Shelf Registration Statement as contemplated by Section 3 hereof from the Initial Purchaser, in exchange for such Securities, a like principal amount of New Securities.  The Company and the Guarantors shall use their respective commercially reasonable best efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for such New Securities as for

 

6


 

New Securities issued pursuant to the Registered Exchange Offer.  In the event that, following the initial filing with the Commission of an Exchange Offer Registration Statement pursuant to Section 2(a) hereof, the Initial Purchaser notifies the Company in writing that it continues to hold all of the Securities sold in the Initial Placement, then the Company’s obligations under Section 2 hereof shall terminate and the Company’s sole obligation under this Agreement shall be to effect a Shelf Registration Statement in accordance with Section 3 hereof.

 

(g)                                 The Company and the Guarantors shall ensure that the Exchange Offer Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Exchange Offer Registration Statement or such amendment or supplement, (A) comply in all material respects with the applicable requirements of the Act; and (B) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading (it being understood that the Company and the Guarantors shall not be responsible for any information provided by or on behalf of Holders).

 

3.                                       Shelf Registration.  (a)  If (i) due to any change in law or applicable interpretations thereof by the Commission or its staff, the Company and the Guarantors determine upon advice of their outside counsel that they are not permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) the Registered Exchange Offer is not consummated within 30 Business Days of the date of the effectiveness of the Exchange Offer Registration Statement; (iii) prior to the 20th day following consummation of the Registered Exchange Offer (A) the Initial Purchaser so requests with respect to Securities that are not eligible to be exchanged for New Securities in the Registered Exchange Offer and that are held by it following consummation of the Registered Exchange Offer, or (B) any Holder (other than the Initial Purchaser) is not eligible to participate in the Registered Exchange Offer (other than by reason of such Holder being an Affiliate of the Company); (iv) if the Initial Purchaser participates in the Registered Exchange Offer or acquires New Securities pursuant to Section 2(f) hereof, and the Initial Purchaser does not receive freely tradable New Securities in exchange for Securities constituting any portion of an unsold allotment (it being understood that (x) the requirement that the Initial Purchaser deliver a Prospectus containing the information required by Item 507 or 508 of Regulation S-K under the Act in connection with sales of New Securities acquired in exchange for such Securities shall not result in such New Securities being not “freely tradeable” and (y) the requirement that an Exchanging Dealer deliver a Prospectus in connection with sales of New Securities acquired in the Registered Exchange Offer in exchange for Securities acquired as a result of market-making activities or other trading activities shall not result in such New Securities being not “freely tradeable”); or (v) the Initial Purchaser notifies the Company in writing pursuant to Section 2(f) hereof that it continues to hold all of the Securities sold in the Initial Placement, the Company and the Guarantors shall effect at their cost a Shelf Registration Statement in accordance with subsection (b) below.

 

(b)  (i)  The Company and the Guarantors shall as promptly as practicable (but in no event more than 45 days after so required or requested pursuant to this Section 3), file with the Commission and shall use their respective commercially reasonably best efforts to cause to be declared effective under the Act within 90 days (or 180 days if the Initial Purchaser has notified the Company in writing pursuant to Section 2(f) hereof that it continues to hold all of the

 

7


 

Securities sold in the Initial Placement) after so required or requested (the “Shelf Effectiveness Date”), a Shelf Registration Statement relating to the offer and sale of the Securities or the New Securities, as applicable, by the Holders thereof from time to time in accordance with the methods of distribution elected by such Holders and set forth in such Shelf Registration Statement; provided, however, that no Holder (other than the Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder; and provided further, that with respect to New Securities received by the Initial Purchaser in exchange for Securities constituting any portion of an unsold allotment, the Company and the Guarantors may, if permitted by current interpretations by the Commission’s staff, file a post-effective amendment to the Exchange Offer Registration Statement containing the information required by Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their obligations under this subsection with respect thereto, and any such Exchange Offer Registration Statement, as so amended, shall be referred to herein as, and governed by the provisions herein applicable to, a Shelf Registration Statement.

 

(ii)                                  Subject to Section 4(c), the Company and the Guarantors shall use their respective commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the Act, in order to permit the Prospectus forming part thereof to be usable by Holders for a period (the “Shelf Registration Period”) from the date the Shelf Registration Statement is declared effective by the Commission until the earliest of (A) 90 days after the Shelf Registration is declared effective or (B) the date upon which all the Securities covered by the Shelf Registration Statement have been sold or distributed pursuant to the Shelf Registration Statement.  The Company and the Guarantors shall be deemed not to have used their respective commercially reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Registration Period if they voluntarily take any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities at any time during the Shelf Registration Period, unless such action is (x) required by applicable law or otherwise undertaken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s and the Guarantors’ obligations hereunder), including the acquisition or divestiture of assets, and (y) permitted pursuant to Section 4(k)(ii) hereof.

 

(iii)                               The Company and the Guarantors shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, (A) to comply in all material respects with the applicable requirements of the Act; and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading (it being understood that the Company and the Guarantors shall not be responsible for any information provided by or on behalf of the Holders).

 

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4.                                       Additional Registration Procedures.  In connection with any Shelf Registration Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following provisions shall apply.

 

(a)                                  The Company and the Guarantors shall:

 

(i)                                     furnish to the Initial Purchaser and to counsel for the Initial Purchaser and the Holders, not less than five Business Days prior to the filing thereof with the Commission, a copy of any Exchange Offer Registration Statement and any Shelf Registration Statement, and each amendment thereof and each amendment or supplement, if any, to the Prospectus included therein and shall use their respective commercially reasonable best efforts to reflect in each such document, when so filed with the Commission, such comments as the Initial Purchaser and such counsel reasonably propose;

 

(ii)                                  include the information set forth in Annex A hereto on the facing page of the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration Statement in a section setting forth details of the Exchange Offer, in Annex C hereto in the underwriting or plan of distribution section of the Prospectus contained in the Exchange Offer Registration Statement, and in Annex D hereto in the letter of transmittal delivered pursuant to the Registered Exchange Offer;

 

(iii)                               if requested by the Initial Purchaser, include the information required by Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the Exchange Offer Registration Statement; and

 

(iv)                              in the case of a Shelf Registration Statement, include the names of the Holders that propose to sell Securities pursuant to the Shelf Registration Statement as selling security holders.

 

(b)                                 The Company and the Guarantors shall ensure that:

 

(i)                                     any Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement thereto complies in all material respects with the Act; and

 

(ii)                                  any Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

 

(c)                                  The Company and the Guarantors shall advise the Holders of Securities covered by any Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer Registration Statement that, in each case, has provided in writing to the Company and the Guarantors a telephone or facsimile number and address for notices, and, if requested by the Initial Purchaser or any such Holder or Exchanging Dealer, shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to

 

9


 

suspend the use of the Prospectus until the Company and the Guarantors shall have remedied the basis for such suspension):

 

(i)                                     when a Registration Statement and any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;

 

(ii)                                  of any request by the Commission for any amendment or supplement to the Registration Statement or the Prospectus or for additional information;

 

(iii)                               of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose;

 

(iv)                              of the receipt by the Company or the Guarantors of any notification with respect to the suspension of the qualification of the securities included therein for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and

 

(v)                                 of the happening of any event that requires any change in the Registration Statement or the Prospectus so that, as of such date, they (A) do not contain any untrue statement of a material fact and (B) do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.

 

(d)                                 The Company and the Guarantors shall use their respective commercially reasonable best efforts to prevent the issuance of any order suspending the effectiveness of any Registration Statement or the qualification of the securities therein for sale in any jurisdiction and, if issued, to obtain as soon as possible the withdrawal thereof.

 

(e)                                  The Company and the Guarantors shall furnish to each Holder of Securities covered by any Shelf Registration Statement, without charge, at least one copy of such Shelf Registration Statement and any post-effective amendment thereto, including all material incorporated therein by reference, and, if the Holder so requests in writing, all exhibits thereto (including exhibits incorporated by reference therein).

 

(f)                                    The Company and the Guarantors shall, during the Shelf Registration Period, deliver to each Holder of Securities covered by any Shelf Registration Statement, without charge, as many copies of the Prospectus (including the Preliminary Prospectus) included in such Shelf Registration Statement and any amendment or supplement thereto as such Holder may reasonably request.  The Company and the Guarantors consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders of Securities in connection with the offering and sale of the Securities covered by the Prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.

 

(g)                                 [Reserved].

 

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(h)                                 The Company and the Guarantors shall promptly deliver to the Initial Purchaser, each Exchanging Dealer and each other person required to deliver a Prospectus during the Exchange Offer Registration Period, without charge, as many copies of the Prospectus included in such Exchange Offer Registration Statement and any amendment or supplement thereto as any such person may reasonably request.  The Company and the Guarantors consent to the use of the Prospectus or any amendment or supplement thereto by the Initial Purchaser, any Exchanging Dealer and any such other person that may be required to deliver a Prospectus following the Registered Exchange Offer in connection with the offering and sale of the New Securities covered by the Prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration Statement.

 

(i)                                     Prior to the Registered Exchange Offer or any other offering of Securities pursuant to any Registration Statement, the Company and the Guarantors shall use their respective commercially reasonable best efforts to arrange, if necessary, for the qualification of the Securities or the New Securities for sale under the laws of such jurisdictions as any Holder shall reasonably request and shall maintain such qualification in effect so long as required; provided that in no event shall the Company and the Guarantors be obligated to qualify to do business in any jurisdiction where they are not then so qualified or to take any action that would subject them to service of process in suits, other than those arising out of the Initial Placement, the Registered Exchange Offer or any offering pursuant to a Shelf Registration Statement, in any such jurisdiction where they are not then so subject.

 

(j)                                     The Company and the Guarantors shall cooperate with the Holders of Securities to facilitate the timely preparation and delivery of certificates representing New Securities or Securities to be issued or sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as Holders may request.

 

(k)                                  (i)                                     Upon the occurrence of any event contemplated by subsection (c)(v) above, the Company and the Guarantors shall promptly (or within the time period provided for by clause (ii) hereof, if applicable) prepare a post-effective amendment to the applicable Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to the initial purchaser of the securities included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.  In such circumstances, the period of effectiveness of the Exchange Offer Registration Statement provided for in Section 2 shall be extended by the number of days from and including the date of the giving of a notice of suspension pursuant to Section 4(c) to and including the date when the Initial Purchaser, the Holders of the Securities and any known Exchanging Dealer shall have received such amended or supplemented Prospectus pursuant to this Section.

 

(ii)                                  Upon the occurrence or existence of any pending corporate development or any other material event that, in the reasonable judgment of the Company, makes it appropriate to suspend the availability of a Shelf Registration Statement and the related Prospectus, the Company and the Guarantors shall give

 

11

 

notice (without notice of the nature or details of such events) to the Holders that the availability of the Shelf Registration is suspended and, upon actual receipt of any such notice, each Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration until such Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section 4(a) hereof, or until it is advised in writing by the Company and the Guarantors that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus.  The period during which the availability of the Shelf Registration and any Prospectus is suspended (the “Deferral Period”) shall not exceed 90 days in any six-month period.

 

(l)            Not later than the effective date of any Registration Statement, the Company and the Guarantors shall provide a CUSIP number for the Securities or the New Securities, as the case may be, registered under such Registration Statement and provide the Trustee with printed certificates for such Securities or New Securities, in a form eligible for deposit with The Depository Trust Company.

 

(m)          The Company and the Guarantors shall comply with all applicable rules and regulations of the Commission and shall make generally available to their security holders an earnings statement satisfying the provisions of Section 11(a) of the Act as soon as practicable after the effective date of the applicable Registration Statement and in any event no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the applicable Registration Statement.

 

(n)           The Company and the Guarantors shall cause the Indenture to be qualified under the Trust Indenture Act in a timely manner.

 

(o)           The Company and the Guarantors may require each Holder of securities to be sold pursuant to any Shelf Registration Statement to furnish to the Company and the Guarantors such information regarding the Holder and the distribution of such securities as the Company and the Guarantors may from time to time reasonably require for inclusion in such Registration Statement.  The Company and the Guarantors may exclude from such Shelf Registration Statement the Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request.

 

(p)           In the case of any Shelf Registration Statement, the Company and the Guarantors shall enter into customary agreements (including, if requested, an underwriting agreement in customary form) and take all other appropriate actions in order to expedite or facilitate the registration or the disposition of the Securities, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures no less favorable than those set forth in Section 6 hereof.

 

(q)           In the case of any Shelf Registration Statement, the Company and the Guarantors shall:

 

12


 

(i)            make all relevant financial and other records and pertinent corporate documents of the Company and its subsidiaries reasonably available for inspection by the Holders of Securities to be registered thereunder, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by the Holders or any such underwriter;

 

(ii)           cause the Company’s and the Guarantors’ officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Majority Holders or any such underwriter, attorney, accountant or agent in connection with any such Registration Statement as is customary for similar due diligence examinations;

 

(iii)          make such representations and warranties to the Holders of Securities registered thereunder and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement;

 

(iv)          if requested by the Majority Holders, their counsel or the managing underwriters, if any, in connection with such Shelf Registration Statement, obtain opinions of counsel to the Company and the Guarantors and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any) addressed to each selling Holder and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters;

 

(v)           if requested by the Majority Holders, their counsel or the managing underwriters, if any, in connection with such Shelf Registration Statement, obtain “comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling Holder of Securities registered thereunder and the underwriters, if any, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with primary underwritten offerings; and

 

(vi)          deliver such documents and certificates as may be reasonably requested by the Majority Holders or the Managing Underwriters, if any, including those to evidence compliance with Section 4(k) and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company and the Guarantors.

 

The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q) shall be performed at (A) the effectiveness of such Registration Statement and each post-effective amendment thereto;

 

13


 

and (B) each closing under any underwriting or similar agreement as and to the extent required thereunder.

 

(r)            In the case of any Exchange Offer Registration Statement, the Company shall, if requested by the Initial Purchaser, or by a broker dealer that holds Securities that were acquired as a result of market making or other trading activities:

 

(i)            make reasonably available for inspection by the requesting party, and any attorney, accountant or other agent retained by the requesting party, all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries;

 

(ii)           cause the Company’s and the Guarantors’ officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the requesting party or any such attorney, accountant or agent in connection with any such Registration Statement as is customary for similar due diligence examinations;

 

(iii)          make such representations and warranties to the requesting party, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement;

 

(iv)          obtain opinions of counsel to the Company and the Guarantors and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the requesting party and its counsel), addressed to the requesting party, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by the requesting party or its counsel;

 

(v)           obtain “comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to the requesting party, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with primary underwritten offerings, or if requested by the requesting party or its counsel in lieu of a “comfort” letter, an agreed-upon procedures letter under Statement on Auditing Standards No. 72, covering matters requested by the requesting party or its counsel; and

 

(vi)          deliver such documents and certificates as may be reasonably requested by the requesting party or its counsel, including those to evidence compliance with Section 4(k) and with conditions customarily contained in underwriting agreements.

 

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The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this paragraph (r) shall be performed at the close of the Registered Exchange Offer and the effective date of any post-effective amendment to the Exchange Offer Registration Statement.

 

(s)           If a Registered Exchange Offer is to be consummated, upon delivery of the Securities by Holders to the Company (or to such other person as directed by the Company) in exchange for the New Securities, the Company shall mark, or caused to be marked, on the Securities so exchanged that such Securities are being cancelled in exchange for the New Securities.  In no event shall the Securities be marked as paid or otherwise satisfied.

 

(t)            The Company and the Guarantors shall use their respective commercially reasonable best efforts, if the Securities have been rated prior to the initial sale of such Securities, to confirm such rating agencies will continue to rate the Securities or the New Securities, as the case may be, covered by a Registration Statement.

 

(u)           In the event that any Broker-Dealer shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the FINRA rules) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company and the Guarantors shall cooperate with such Broker-Dealer in connection with any filing required to be made under the FINRA rules.

 

(v)           The Company and the Guarantors shall use their respective commercially reasonable best efforts to take all other steps necessary to effect the registration of the Securities or the New Securities, as the case may be, covered by a Registration Statement.

 

5.             Registration Expenses.  The Company and the Guarantors shall bear all expenses incurred in connection with the performance of its obligations under Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will reimburse the Holders for the reasonable fees and disbursements of one firm or counsel (which shall initially be Weil, Gotshal & Manges LLP, but which may be another nationally recognized law firm experienced in securities matters designated by the Majority Holders) to act as counsel for the Holders in connection therewith; provided that in no event shall such fees and disbursements of counsel be greater than $50,000.

 

6.             Indemnification and Contribution.  (a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold harmless each Holder of Securities or New Securities, as the case may be, covered by any Registration Statement, the Initial Purchaser and, with respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors, officers, employees, Affiliates and agents of each such Holder, Initial Purchaser or Exchanging Dealer and each person who controls any such Holder, Initial Purchaser or Exchanging Dealer within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally

 

15


 

filed or in any amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made) not misleading, and agree to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company and the Guarantors by or on behalf of any Holder or the Initial Purchaser specifically for inclusion therein.  This indemnity agreement shall be in addition to any liability that the Company and the Guarantors may otherwise have.

 

The Company and the Guarantors also, jointly and severally, agree to indemnify as provided in this Section 6(a) or contribute as provided in Section 6(e) hereof to Losses of each underwriter, if any, of Securities or New Securities, as the case may be, registered under a Shelf Registration Statement, on substantially the same basis as that of the indemnification of the Initial Purchaser and the selling Holders provided in this Section 6(a) and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 4(p) hereof.

 

(b)           Each Holder of securities covered by a Registration Statement (including the Initial Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and hold harmless the Company and the Guarantors, each of their respective directors, each of their respective officers who signs such Registration Statement and each person who controls the Company and the Guarantors within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against losses, claims, damages or liabilities (or actions in respect thereof) and agree to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action, to the same extent as the foregoing indemnity from the Company and the Guarantors to each such Holder, but only with reference to information relating to such Holder furnished to the Company and the Guarantors by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing indemnity.  This indemnity agreement will be in addition to any liability that any such Holder may otherwise have.

 

(c)           Promptly after receipt by an indemnified party under this Section 6 or notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above.  The indemnifying party shall

 

16


 

be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party.  Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest between the indemnifying party and the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.  It is understood and agreed that the indemnifying person shall not, in connection with any proceeding or separate but related or substantially similar proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) representing the indemnified parties under paragraph (a) or paragraph (b) of this Section 6, as the case may be, who are parties to such action or actions.  Any such separate firm for any Holders shall be designated in writing by the Holders who sold a majority in interest of the Securities or New Securities by all such Holders in the case of paragraph (a) of this Section 6 or the Company in the case of paragraph (b) of this Section 6.  In the event that any Holders are indemnified persons collectively entitled, in connection with a proceeding or separate but related or substantially similar proceedings in a single jurisdiction, to the payment of fees and expenses of a single separate firm under this Section 6(c), and any such Holders cannot agree to a mutually acceptable separate firm to act as counsel thereto, then such separate firm for all such indemnified parties shall be designated in writing by the Holders who sold a majority in interest of the Securities or New Securities by all such Holders.  An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include any statement as to any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.  All fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they are incurred.

 

(d)           After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified

 

17


 

party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the third sentence of paragraph (c) of this Section 6 or (ii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party.  After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld), unless such indemnified party waived in writing its rights under this Section 6, in which case the indemnified party may effect such a settlement without such consent.

 

(e)           In the event that the indemnity provided in paragraph (a) or (b) of this Section 6 is unavailable to or insufficient to hold harmless an indemnified party for any reason for the losses, claims, damages or liabilities (or actions in respect thereof) (other than by virtue of the failure of an indemnified party to notify the indemnifying party of its right to indemnification pursuant to paragraph (a) or (b) of this Section 6, where such failure materially prejudices the indemnifying party (through the forfeiture of substantial rights or defenses)) referred to therein, then each applicable indemnifying party shall have a joint and several obligation (unless the Holders are the indemnifying parties in which case their obligations are several and not joint) to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, liability, damage or action) (collectively “Losses”) to which such indemnified party may be subject in such proportion as is appropriate to reflect the relative benefits received by such indemnifying party, on the one hand, and such indemnified party, on the other hand, from the Initial Placement and the Registration Statement which resulted in such Losses; provided, however, that in no case shall the Initial Purchaser be responsible, in the aggregate, for any amount in excess of 2.0% of the aggregate principal amount of such Security, or in the case of a New Security, 2.0% of the aggregate principal amount of such Security that was exchangeable into such New Security, as set forth in the Final Memorandum, nor shall any underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the securities purchased by such underwriter under the Registration Statement which resulted in such Losses.  If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying party and the indemnified party shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations.  Benefits received by the Company and the Guarantors shall be deemed to be equal to the total net proceeds from the Initial Placement (before deducting expenses) as set forth in the Final Memorandum.  Benefits received by the Initial Purchaser shall be deemed to be equal to 2.0% of the aggregate principal amount of the Securities referred to in the Final Memorandum, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Securities or New Securities, as applicable, registered under the Act.  Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Registration Statement which resulted in such Losses.  Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a

 

18


 

material fact or omission or alleged omission to state a material fact relates to information provided by the indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.  The parties agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above.  Notwithstanding the provisions of this paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  For purposes of this Section 6, each person who controls a Holder within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and each person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each officer of the Company or any of the Guarantors who shall have signed the Registration Statement and each director of the Company or any of the Guarantors shall have the same rights to contribution as the Company and the Guarantors, subject in each case to the applicable terms and conditions of this paragraph (e).

 

(f)            The provisions of this Section will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the indemnified persons referred to in this Section 6, and will survive the sale by a Holder of securities covered by a Registration Statement.

 

7.             Underwritten Registrations.

 

(a)           The Company shall not be required to assist in an underwritten offering unless requested by the Majority Holders.

 

(b)           If any of the Securities or New Securities, as the case may be, covered by any Shelf Registration Statement are to be sold in an underwritten offering, the Managing Underwriters shall be selected by the Majority Holders and shall be reasonably acceptable to the Company.

 

(c)           No person may participate in any underwritten offering pursuant to any Shelf Registration Statement, unless such person (i) agrees to sell such person’s Securities or New Securities, as the case may be, on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements; and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

8.             Registration Defaults.  If any of the following events shall occur, then the Company shall pay additional interest (the “Additional Interest”) to the Holders of Registrable Securities in respect of the Registrable Securities as follows:

 

(a)           if any Registered Exchange Offer required by this Agreement is not completed prior to the Exchange Offer Completion Date, then Additional Interest shall accrue on

 

19


 

the Registrable Securities at a rate of 0.25% per annum for the first 90 days from and including such Exchange Offer Completion Date and 0.25% per annum at the end of each subsequent 90-day period thereafter in each case until the Registered Exchange Offer required by this Agreement is completed or the Securities become freely tradable under the Securities Act, up to a maximum increase of 0.75% per annum; or

 

(b)           if any Registration Statement required by this Agreement is not declared effective by the Commission on or prior to, in the case of any required Exchange Offer Registration Statement, the Exchange Offer Effectiveness Date, and, in the case of any required Shelf Registration Statement, the Shelf Effectiveness Date, then commencing on the day after such Exchange Offer Effectiveness Date or Shelf Effectiveness Date, as applicable, Additional Interest shall accrue on the Registrable Securities at a rate of 0.25% per annum for the first 90 days from and including such specified date and 0.25% per annum at the end of each subsequent 90-day period thereafter in each case until the Registration Statement, if required hereby, becomes effective or the Securities become freely tradable under the Securities Act, up to a maximum increase of 0.75% per annum; or

 

(c)           if any Registration Statement required by this Agreement has been declared effective but ceases to be effective at any time at which it is required to be effective under this Agreement, then commencing on the day the Registration Statement ceases to be effective, Additional Interest shall accrue on the Registrable Securities at a rate of 0.25% per annum for the first 90 days from and including such specified date and 0.25% per annum at the end of each subsequent 90-day period thereafter in each case until the Registration Statement, if required hereby, becomes effective or the Securities become freely tradable under the Securities Act, up to a maximum increase of 0.75% per annum;

 

provided, however, that Additional Interest may not accrue under more than one of the foregoing clauses at any one time; and provided, further, that (1) upon the effectiveness of the Registration Statement (in the case of paragraph (b) above), or (2) upon the effectiveness of the Registration Statement which had ceased to remain effective (in the case of paragraph (c) above), Additional Interest shall cease to accrue.

 

9.             No Inconsistent Agreements.  The Company and the Guarantors have not entered into, and agrees not to enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or that otherwise conflicts with the provisions hereof.

 

10.           Amendments and Waivers.  The provisions of this Agreement may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company and the Guarantors have obtained the written consent of the Holders of a majority of the aggregate principal amount of the Registrable Securities outstanding; provided that, with respect to any matter that directly or indirectly affects the rights of the Initial Purchaser hereunder, the Company and the Guarantors shall obtain the written consent of the Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is to be effective; provided, further, that no amendment, qualification, supplement, waiver or consent with respect to Section 8 hereof shall be effective as against any Holder of Registered Securities unless consented to in writing by such Holder; and

 

20


 

provided, further, that the provisions of this Section 10 may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company and the Guarantors have obtained the written consent of the Initial Purchaser and each Holder.  Notwithstanding the foregoing (except the foregoing provisos), a waiver or consent to departure from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders whose Securities or New Securities, as the case may be, are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Holders may be given by the Majority Holders, determined on the basis of Securities or New Securities, as the case may be, being sold rather than registered under such Registration Statement.

 

11.           Notices.  All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing overnight delivery:

 

(a)           if to a Holder, at the most current address given by such holder to the Company and the Guarantors in accordance with the provisions of this Section 11, which address initially is, with respect to each Holder, the address of such Holder maintained by the Registrar under the Indenture;

 

(b)           if to the Initial Purchaser, initially at the address or addresses set forth in the Purchase Agreement; and

 

(c)           if to the Company and the Guarantors, initially at the Company’s address set forth in the Purchase Agreement.

 

All such notices and communications shall be deemed to have been duly given when received.

 

The Initial Purchaser or the Company and the Guarantors by notice to the other parties may designate additional or different addresses for subsequent notices or communications.

 

12.           Remedies.  Each Holder, in addition to being entitled to exercise all rights provided to it herein, in the Indenture or in the Purchase Agreement or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Guarantors agree that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive in any action for specific performance the defense that a remedy at law would be adequate.

 

13.           Successors.  This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors and assigns, including, without the need for an express assignment or any consent thereto by the Company and the Guarantors, subsequent Holders of Securities and the New Securities, or the indemnified persons referred to in Section 6 hereof.  The Company and the Guarantors hereby agree to extend the benefits of this Agreement to any Holder of Securities and the New Securities, and any such Holder may specifically enforce the provisions of this Agreement as if an original party hereto.

 

21

 

14.           Counterparts.  This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

 

15.           Headings.  The section headings used herein are for convenience only and shall not affect the construction hereof.

 

16.           Applicable Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed in the State of New York.  The parties hereto each hereby waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.

 

17.           Severability.  In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.

 

18.           Securities Held by the Company, etc.  Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities or New Securities is required hereunder, Securities or New Securities, as applicable, held by the Company, the Guarantors or their Affiliates (other than subsequent Holders of Securities or New Securities if such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such Securities or New Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.

 

22


 

If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company, the Guarantors and the Initial Purchaser.

 

 

ClubCorp Club Operations, Inc.

 

 

 

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

 

 

Name: Ingrid J. Keiser

 

Title: Secretary

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 


 

 

 

191 Athletic Club Management Company, LLC

 

 

191 CC Operating Co., LLC

 

 

Akron Management Corp.

 

 

Aliso Viejo Golf Club Joint Venture

 

 

Anthem Golf, LLC

 

 

April Sound Management Corp.

 

 

Aspen Glen Golf Club Management Company

 

 

Athletic Club at the Equitable Center, Inc.

 

 

AZ Club, LLC

 

 

Barton Creek Resort & Clubs, Inc.

 

 

Bay Oaks Country Club, Inc.

 

 

Bluegrass Club, LLC

 

 

Brookhaven Country Club, Inc.

 

 

Capital City Club of Montgomery, Inc.

 

 

Capital City Club of Raleigh, Inc.

 

 

CCA Golf Course Holdco, LLC

 

 

CCA Mezzanine Holdco, LLC

 

 

Centre Club, Inc.

 

 

Citrus Club, Inc.

 

 

City Club of Washington, Inc.

 

 

Club at Boston College, Inc.

 

 

Club Le Conte, Inc.

 

 

ClubCorp — Asia

 

 

ClubCorp Airways Golf, Inc.

 

 

ClubCorp Aliso Viejo Holding Corp.

 

 

ClubCorp Asia Investments Inc.

 

 

ClubCorp Aven Holdings, Inc.

 

 

ClubCorp Braemar Country Club, Inc.

 

 

ClubCorp Bunker Hill Club, Inc.

 

 

ClubCorp Buying Services, Inc.

 

 

ClubCorp Canyon Crest Country Club, Inc.

 

 

ClubCorp Center Club, Inc.

 

 

ClubCorp Coto Property Holdings, Inc.

 

 

ClubCorp Crow Canyon Management Corp.

 

 

ClubCorp Desert Falls Country Club, Inc.

 

 

ClubCorp Financial Management Company

 

 

ClubCorp GCL Corporation

 

 

ClubCorp Gen Par of Texas, L.L.C.

 

 

ClubCorp Golf of California, L.L.C.

 

 

ClubCorp Golf of Florida, L.L.C.

 

 

ClubCorp Golf of Georgia, L.P.

 

 

ClubCorp Golf of North Carolina, L.L.C.

 

 

ClubCorp Golf of Texas, L.P.

 

 

ClubCorp Granite Bay Management, Inc.

 

 

ClubCorp Graphics, Inc.

 

 

ClubCorp Hamlet, LLC

 


 

 

 

ClubCorp International, Inc.

 

 

ClubCorp IW Golf Club, Inc.

 

 

ClubCorp Management Company for Stone Creek, LLC

 

 

ClubCorp Mexico, Inc.

 

 

ClubCorp Mezzanine Borrower, LLC

 

 

ClubCorp Mission Hills Country Club, Inc.

 

 

ClubCorp Mortgage Borrower, LLC

 

 

ClubCorp Porter Valley Country Club, Inc.

 

 

ClubCorp Publications, Inc.

 

 

ClubCorp San Jose Club, Inc.

 

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

 

ClubCorp Symphony Towers Club, Inc.

 

 

ClubCorp Teal Bend Golf Club, Inc.

 

 

ClubCorp TTC, LLC

 

 

ClubCorp Turkey Creek Golf Club, Inc.

 

 

ClubCorp USA, Inc.

 

 

ClubCorp Willow Creek, LLC

 

 

ClubCorp Wind Watch, LLC

 

 

Columbia Capital City Club Corp.

 

 

Columbia Tower Club, Inc.

 

 

Countryside Country Club, Inc.

 

 

Currituck Golf, LLC

 

 

Dallas Tower Club, Inc.

 

 

Dayton Racquet Club, Inc.

 

 

DeBary Management Corp.

 

 

Diamante’ Golf Club Management, Inc.

 

 

Diamante’ Golf Club Partners, Inc.

 

 

Diamond Run Club, Inc.

 

 

Empire Ranch, LLC

 

 

Fair Oaks Club Corp.

 

 

Farms of New Kent Management, LLC

 

 

FFFC Golf Acquisitions, L.L.C.

 

 

First City Club Management, Inc.

 

 

Fort Bend Acquisition Corp.

 

 

GCC Asset Management, Inc.

 

 

Glendale Management Corp.

 

 

Glendale Racquet Club, Inc.

 

 

GP Bear’s Best Atlanta, Inc.

 

 

GRanch Golf Club, Inc.

 

 

Greenbrier Country Club, Inc.

 

 

Greenspoint Club, Inc.

 

 

Hackberry Creek Country Club, Inc.

 

 

Haile Plantation Management Corp.

 

 

Harbour Club of Charleston, Inc.

 

 

Hearthstone Country Club, Inc.

 


 

 

 

Hill Country Golf, Inc.

 

 

Hills II of Lakeway, Inc.

 

 

Houston City Club, Inc.

 

 

HPG, L.C.

 

 

Hunter’s Green Acquisition Corp.

 

 

Indigo Run Asset Corp.

 

 

Irving Club Acquisition Corp.

 

 

Kingwood Country Club, Inc.

 

 

Knollwood Country Club, Inc.

 

 

La Cima Club, Inc.

 

 

Lakeway Clubs, Inc.

 

 

Laurel Springs Holdco, LLC

 

 

LionsGate Golf Club, Inc.

 

 

MAC Club, LLC

 

 

Management Company for Eagle Ridge and The

 

 

Preserve

 

 

Manager for CCHH, Inc.

 

 

Master Club, Inc.

 

 

Memorial Stadium Club Management Corp.

 

 

Memphis City Club, Inc.

 

 

MH Villas, Inc.

 

 

Monarch EP Management Corp.

 

 

Nashville Club Management, Inc.

 

 

New England Country Club Management, Inc.

 

 

Northwood Management Corp.

 

 

Oak Pointe Country Club, Inc.

 

 

Oakmont Management Corp.

 

 

Operations Company for Homestead, Inc.

 

 

Owners Club Asset Company

 

 

Piedmont Club, Inc.

 

 

Piedmont Golfers’ Club LLC

 

 

Pyramid Club Management, Inc.

 

 

Quail Hollow Management, Inc.

 

 

Queens Harbour Corporation

 

 

Renaissance Club, Inc.

 

 

Richardson Country Club Corp.

 

 

River Creek Country Club, Inc.

 

 

Rivers Club, Inc.

 

 

Shady Valley Management Corp.

 

 

Shoreby Club Management, Inc.

 

 

Silver Lake Management Corp.

 

 

Skyline Club, Inc.

 

 

Society Management, Inc.

 

 

Southern Trace Country Club of Shreveport, Inc.

 

 

Stonebriar Management Corp.

 

 

Stonehenge Club, Inc.

 


 

 

 

Tampa Palms Club, Inc.

 

 

The 191 Club, Inc.

 

 

The Buckhead Club, Inc.

 

 

The Club at Cimarron, Inc.

 

 

The Club at Society Center, Inc.

 

 

The Commerce Club, Inc.

 

 

The Downtown Club, Inc.

 

 

The Manager of the Owner’s Club, Inc.

 

 

The Metropolitan Club of Chicago, Inc.

 

 

The Owner’s Club, Inc.

 

 

The Owner’s Club at Hilton Head, L.P.

 

 

The Owner’s Club of South Carolina, L.L.C.

 

 

The Plaza Club of San Antonio, Inc.

 

 

The Summit Club, Inc.

 

 

The University Club, Inc.

 

 

Timarron Golf Club, Inc.

 

 

Tower City Club of Virginia, Inc.

 

 

Tower Club of Dallas, Inc.

 

 

Tower Club, Inc.

 

 

Town Point Club, Inc.

 

 

Treesdale Country Club, Inc.

 

 

UMass Club Management, LLC

 

 

UNC Alumni Club Management, Inc.

 

 

University Club Management Co., Inc.

 

 

University Club, Inc.

 

 

Walnut Creek Management Corporation

 

 

West Park Club, Inc.

 

 

Westlake City Club, Inc.

 

 

Wildflower Country Club, Inc.

 

 

Willow Creek Management, Inc.

 

 

Woodside Plantation Country Club, Inc.

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

 

 

 

 

 

 

 

 

 

Canyon Gate at Las Vegas, Inc.

 

 

GP Bear’s Best Las Vegas, Inc.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Eric L. Affeldt

 

 

Name: Eric L. Affeldt

 

 

Title: President, Treasurer and Secretary

 


 

The foregoing Agreement is hereby confirmed and accepted as of the date first above written.

 

 

 

 

 

Citigroup Global Markets Inc.

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Matthew J. Greenberger

 

 

 

Name:

Matthew J. Greenberger

 

 

 

Title:

Managing Director

 

 

 


 

ANNEX A

 

Each broker-dealer that receives new securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new securities.  The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”  within the meaning of the Act.  This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new securities received in exchange for securities where such securities were acquired by such broker-dealer as a result of market-making activities or other trading activities.  The Company has agreed that,  for a period of 90 days after the date of this prospectus, it will make this prospectus available to any broker-dealer for use in connection with any such resale.  See “Plan of Distribution.”

 

A-1


 

ANNEX B

 

Each broker-dealer that receives new securities for its own account in exchange for securities, where such securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new securities.  See “Plan of Distribution.”

 

B-1


 

ANNEX C

 

PLAN OF DISTRIBUTION

 

Each broker-dealer that receives new securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new securities.  This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new securities received in exchange for securities where such securities were acquired as a result of market-making activities or other trading activities.  In addition, all dealers effecting transactions in the new securities may be required to deliver a prospectus.  To the extent any such broker-dealer participates in the Exchange Offer, the Company has agreed that, for a period of 90 days after the date of this prospectus, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale, and will deliver as many additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the Letter of Transmittal.

 

The Company will not receive any proceeds from any sale of new securities by brokers-dealers.  New securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices.  Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such new securities.  Any broker-dealer that resells new securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such new securities may be deemed to be an “underwriter” within the meaning of the Act and any profit of any such resale of new securities and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Act.  The Letter of Transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Act.

 

The Company has agreed to pay all expenses incident to the Exchange Offer other than commissions or concessions of any brokers or dealers and will indemnify the holders of the securities (including any broker-dealers) against certain liabilities, including liabilities under the Act.

 

C-1


 

ANNEX D

 

Rider A

 

PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.

 

Name:

 

 

Address:

 

 

 

 

 

 

Rider B

 

If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New Securities in the ordinary course of its business, it is not engaged in, and does not intend to engage in, a distribution of New Securities and it has no arrangements or understandings with any person to participate in a distribution of the New Securities.  If the undersigned is a Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it represents that the Securities to be exchanged for New Securities were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such New Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Act.

 

D-1


 EX-5.1 346 a2202241zex-5_1.htm EX-5.1

Exhibit 5.1

 

[SIMPSON THACHER & BARTLETT LLP Letterhead]

 

 

March 28, 2011

 

ClubCorp Club Operations, Inc.
3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as counsel to ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Delaware subsidiaries of the Company named on Schedule I hereto (the “Delaware Guarantors”), the New York subsidiary of the Company named on Schedule II hereto (the “New York Guarantor”)  and the other subsidiaries of the Company named on Schedule III hereto (the “Other Guarantors” and, together with the Delaware Guarantors and the New York Guarantor, the “Guarantors”) in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by the Company and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors of guarantees (collectively, the “Guarantees”) with respect to the Exchange Notes.  The Exchange Notes and the Guarantees will be issued under an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the Guarantors and Wilmington Trust FSB, as trustee (the “Trustee”).  The Exchange Notes will be offered by the Company in exchange for up to $415,000,000

 


 

aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which has been filed with the Commission as an exhibit to the Registration Statement.  We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth.  As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.  We also have assumed that the Indenture is the valid and legally binding obligation of the Trustee.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.             When the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon the exchange, the Exchange Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.

 

2.             When (a) the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon the exchange and (b) the Guarantees have been duly issued, the Guarantees will

 

2


 

constitute valid and legally binding obligations of the Guarantors enforceable against the Guarantors in accordance with their terms.

 

Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.

 

We express no opinion as to the validity, legally binding effect or enforceability of Section 12.11 of the Indenture relating to severability of provisions.

 

We have relied upon, insofar as the opinions expressed herein relate to or are dependent upon matters governed by the law of (i) the State of Alabama, the opinion of Bradley Arant Boult Cummings LLP, (ii) the States of Arizona, Florida, Georgia, Massachusetts, Pennsylvania and Virginia and the District of Columbia., the opinions of Greenberg Traurig, LLP, (iii) the State of Arkansas, the opinion of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., (iv) the States of California, Colorado and Nevada, the opinions of Brownstein Hyatt Farber Schreck, LLP, (v) the States of Illinois and Washington, the opinion of Perkins Coie LLP, (vi) the State of Indiana, the opinion of Ice Miller LLP, (vii) the State of Michigan, the opinion of Dickinson Wright PLLC, (viii) the State of Kansas, the opinion of Shook, Hardy & Bacon LLP, (ix) the State of Louisiana, the opinion of Sher Garner Cahill Richter Klein & Hilbert, L.L.C., (x) the States of Mississippi and Tennessee, the opinions of Harris Shelton Hanover Walsh, PLLC, (xi) the States of North Carolina and South Carolina, the opinion of Womble Carlyle Sandridge & Rice, P.L.L.C., (xii) the State of Ohio, the opinion of Baker Hostetler, (xiii) the State of Texas, the opinion of Gardere

 

3


 

Wynne Sewell LLP, and (xiv) the State of Wisconsin, the opinion of Quarles & Brady LLP, in each case, dated the date hereof and being delivered concurrently herewith.

 

We do not express any opinion herein concerning any law other than (i) the federal law of the United States, (ii) the Delaware General Corporation Law and the Delaware Limited Liability Company Act (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing), (iii) the law of the State of New York, and (iv) to the extent set forth herein, the laws of the States of Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, Nevada, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Washington and Wisconsin and the District of Columbia.

 

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very truly yours,

 

 

 

/s/ Simpson Thacher & Bartlett LLP

 

 

 

SIMPSON THACHER & BARTLETT LLP

 

4


 

SCHEDULE I

 

DELAWARE GUARANTORS

 

 

 

Form of Entity and

Name of Guarantor

 

Jurisdiction of Organization

1.

 

ClubCorp Airways Golf, Inc.

 

Delaware corporation

2.

 

ClubCorp Aliso Viejo Holding Corp.

 

Delaware corporation

3.

 

ClubCorp Aven Holdings, Inc.

 

Delaware corporation

4.

 

ClubCorp Braemar Country Club, Inc.

 

Delaware corporation

5.

 

ClubCorp Bunker Hill Club, Inc.

 

Delaware corporation

6.

 

ClubCorp Buying Services, Inc.

 

Delaware corporation

7.

 

ClubCorp Canyon Crest Country Club, Inc.

 

Delaware corporation

8.

 

ClubCorp Center Club, Inc.

 

Delaware corporation

9.

 

ClubCorp Coto Property Holdings, Inc.

 

Delaware corporation

10.

 

ClubCorp Crow Canyon Management Corp.

 

Delaware corporation

11.

 

ClubCorp Desert Falls Country Club, Inc.

 

Delaware corporation

12.

 

ClubCorp GCL Corporation

 

Delaware corporation

13.

 

ClubCorp Granite Bay Management, Inc.

 

Delaware corporation

14.

 

ClubCorp IW Golf Club, Inc.

 

Delaware corporation

15.

 

ClubCorp Mission Hills Country Club, Inc.

 

Delaware corporation

16.

 

ClubCorp Porter Valley Country Club, Inc.

 

Delaware corporation

17.

 

ClubCorp San Jose Club, Inc.

 

Delaware corporation

18.

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

Delaware corporation

19.

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

Delaware corporation

20.

 

ClubCorp Symphony Towers Club, Inc.

 

Delaware corporation

21.

 

ClubCorp Teal Bend Golf Club, Inc.

 

Delaware corporation

22.

 

ClubCorp Turkey Creek Golf Club, Inc.

 

Delaware corporation

23.

 

ClubCorp USA, Inc.

 

Delaware corporation

24.

 

Owners Club Asset Company

 

Delaware corporation

25.

 

The Owner’s Club, Inc.

 

Delaware corporation

26.

 

191 Athletic Club Management Company, LLC

 

Delaware limited liability company

27.

 

191 CC Operating Co., LLC

 

Delaware limited liability company

28.

 

AZ Club, LLC

 

Delaware limited liability company

29.

 

CCA Golf Course Holdco, LLC

 

Delaware limited liability company

30.

 

CCA Mezzanine Holdco, LLC

 

Delaware limited liability company

31.

 

ClubCorp Gen Par of Texas, L.L.C.

 

Delaware limited liability company

32.

 

ClubCorp Golf of California, L.L.C.

 

Delaware limited liability company

33.

 

ClubCorp Golf of Florida, L.L.C.

 

Delaware limited liability company

34.

 

ClubCorp Golf of North Carolina, L.L.C.

 

Delaware limited liability company

35.

 

ClubCorp Hamlet, LLC

 

Delaware limited liability company

36.

 

ClubCorp Management Company for Stone Creek, LLC

 

Delaware limited liability company

37.

 

ClubCorp Mezzanine Borrower, LLC

 

Delaware limited liability company

38.

 

ClubCorp Mortgage Borrower, LLC

 

Delaware limited liability company

39.

 

ClubCorp TTC, LLC

 

Delaware limited liability company

40.

 

ClubCorp Willow Creek, LLC

 

Delaware limited liability company

41.

 

ClubCorp Wind Watch, LLC

 

Delaware limited liability company

42.

 

Currituck Golf, LLC

 

Delaware limited liability company

43.

 

Empire Ranch, LLC

 

Delaware limited liability company

44.

 

Farms of New Kent Management, LLC

 

Delaware limited liability company

45.

 

FFFC Golf Acquisitions, L.L.C.

 

Delaware limited liability company

46.

 

Laurel Springs Holdco, LLC

 

Delaware limited liability company

47.

 

MAC Club, LLC

 

Delaware limited liability company

48.

 

The Owner’s Club of South Carolina, L.L.C.

 

Delaware limited liability company

49.

 

UMass Club Management, LLC

 

Delaware limited liability company

 


 

SCHEDULE II

 

NEW YORK GUARANTOR

 

 

 

Form of Entity and

Name of Guarantor

 

Jurisdiction of Organization

1.

 

Athletic Club at the Equitable Center, Inc.

 

New York corporation

 


 

SCHEDULE III

 

OTHER GUARANTORS

 

 

 

Form of Entity and

Name of Guarantor

 

Jurisdiction of Organization

1.

 

Capital City Club of Montgomery, Inc.

 

Alabama corporation

2.

 

The Summit Club, Inc.

 

Alabama corporation

3.

 

GRanch Golf Club, Inc.

 

Arizona corporation

4.

 

Anthem Golf, LLC

 

Arizona limited liability company

5.

 

Diamante’ Golf Club Management, Inc.

 

Arkansas corporation

6.

 

Diamante’ Golf Club Partners, Inc.

 

Arkansas corporation

7.

 

MH Villas, Inc.

 

California corporation

8.

 

Aliso Viejo Golf Club Joint Venture

 

California general partnership

9.

 

Aspen Glen Golf Club Management Company

 

Colorado corporation

10.

 

Centre Club, Inc.

 

Florida corporation

11.

 

Citrus Club, Inc.

 

Florida corporation

12.

 

ClubCorp Graphics, Inc.

 

Florida corporation

13.

 

Countryside Country Club, Inc.

 

Florida corporation

14.

 

DeBary Management Corp.

 

Florida corporation

15.

 

Haile Plantation Management Corp.

 

Florida corporation

16.

 

Hunter’s Green Acquisition Corp.

 

Florida corporation

17.

 

Management Company for Eagle Ridge and The Preserve

 

Florida corporation

18.

 

Monarch EP Management Corp.

 

Florida corporation

19.

 

Queens Harbour Corporation

 

Florida corporation

20.

 

Tampa Palms Club, Inc.

 

Florida corporation

21.

 

Tower Club, Inc.

 

Florida corporation

22.

 

University Club Management Co., Inc.

 

Florida corporation

23.

 

University Club, Inc.

 

Florida corporation

24.

 

HPG, L.C.

 

Florida limited liability company

25.

 

First City Club Management, Inc.

 

Georgia corporation

26.

 

GP Bear’s Best Atlanta, Inc.

 

Georgia corporation

27.

 

Northwood Management Corp.

 

Georgia corporation

28.

 

The 191 Club, Inc.

 

Georgia corporation

29.

 

The Buckhead Club, Inc.

 

Georgia corporation

30.

 

ClubCorp Golf of Georgia, L.P.

 

Georgia limited partnership

31.

 

The Metropolitan Club of Chicago, Inc.

 

Illinois corporation

32.

 

Knollwood Country Club, Inc.

 

Indiana corporation

33.

 

Skyline Club, Inc.

 

Indiana corporation

34.

 

LionsGate Golf Club, Inc.

 

Kansas corporation

35.

 

Southern Trace Country Club of Shreveport, Inc.

 

Louisiana corporation

36.

 

Club at Boston College, Inc.

 

Massachusetts corporation

37.

 

New England Country Club Management, Inc.

 

Massachusetts corporation

38.

 

Oak Pointe Country Club, Inc.

 

Michigan corporation

39.

 

Renaissance Club, Inc.

 

Michigan corporation

40.

 

The University Club, Inc.

 

Mississippi corporation

41.

 

Canyon Gate at Las Vegas, Inc.

 

Nevada corporation

42.

 

ClubCorp — Asia

 

Nevada corporation

43.

 

ClubCorp Asia Investments Inc.

 

Nevada corporation

44.

 

ClubCorp Financial Management Company

 

Nevada corporation

45.

 

ClubCorp International, Inc.

 

Nevada corporation

46.

 

ClubCorp Mexico, Inc.

 

Nevada corporation

47.

 

ClubCorp Publications, Inc.

 

Nevada corporation

48.

 

GP Bear’s Best Las Vegas, Inc.

 

Nevada corporation

 


 

49.

 

Master Club, Inc.

 

Nevada corporation

50.

 

Society Management, Inc.

 

Nevada corporation

51.

 

Capital City Club of Raleigh, Inc.

 

North Carolina corporation

52.

 

Piedmont Club, Inc.

 

North Carolina corporation

53.

 

UNC Alumni Club Management, Inc.

 

North Carolina corporation

54.

 

Akron Management Corp.

 

Ohio corporation

55.

 

Dayton Racquet Club, Inc.

 

Ohio corporation

56.

 

Quail Hollow Management, Inc.

 

Ohio corporation

57.

 

Shoreby Club Management, Inc.

 

Ohio corporation

58.

 

Silver Lake Management Corp.

 

Ohio corporation

59.

 

The Club at Society Center, Inc.

 

Ohio corporation

60.

 

Diamond Run Club, Inc.

 

Pennsylvania corporation

61.

 

Pyramid Club Management, Inc.

 

Pennsylvania corporation

62.

 

Rivers Club, Inc.

 

Pennsylvania corporation

63.

 

Treesdale Country Club, Inc.

 

Pennsylvania corporation

64.

 

Columbia Capital City Club Corp.

 

South Carolina corporation

65.

 

Harbour Club of Charleston, Inc.

 

South Carolina corporation

66.

 

Indigo Run Asset Corp.

 

South Carolina corporation

67.

 

Manager for CCHH, Inc.

 

South Carolina corporation

68.

 

The Commerce Club, Inc.

 

South Carolina corporation

69.

 

The Manager of the Owner’s Club, Inc.

 

South Carolina corporation

70.

 

Woodside Plantation Country Club, Inc.

 

South Carolina corporation

71.

 

Piedmont Golfers’ Club LLC

 

South Carolina limited liability company

72.

 

The Owners Club at Hilton Head, L.P.

 

South Carolina limited partnership

73.

 

Club Le Conte, Inc.

 

Tennessee corporation

74.

 

Memphis City Club, Inc.

 

Tennessee corporation

75.

 

Nashville Club Management, Inc.

 

Tennessee corporation

76.

 

Bluegrass Club, LLC

 

Tennessee limited liability company

77.

 

April Sound Management Corp.

 

Texas corporation

78.

 

Barton Creek Resort & Clubs, Inc.

 

Texas corporation

79.

 

Bay Oaks Country Club, Inc.

 

Texas corporation

80.

 

Brookhaven Country Club, Inc.

 

Texas corporation

81.

 

Dallas Tower Club, Inc.

 

Texas corporation

82.

 

Fair Oaks Club Corp.

 

Texas corporation

83.

 

Fort Bend Acquisition Corp.

 

Texas corporation

84.

 

GCC Asset Management, Inc.

 

Texas corporation

85.

 

Greenspoint Club, Inc.

 

Texas corporation

86.

 

Hackberry Creek Country Club, Inc.

 

Texas corporation

87.

 

Hearthstone Country Club, Inc.

 

Texas corporation

88.

 

Hill Country Golf, Inc.

 

Texas corporation

89.

 

Hills II of Lakeway, Inc.

 

Texas corporation

90.

 

Houston City Club, Inc.

 

Texas corporation

91.

 

Irving Club Acquisition Corp.

 

Texas corporation

92.

 

Kingwood Country Club, Inc.

 

Texas corporation

93.

 

La Cima Club, Inc.

 

Texas corporation

94.

 

Lakeway Clubs, Inc.

 

Texas corporation

95.

 

Memorial Stadium Club Management Corp.

 

Texas corporation

96.

 

Oakmont Management Corp.

 

Texas corporation

97.

 

Richardson Country Club Corp.

 

Texas corporation

98.

 

Shady Valley Management Corp.

 

Texas corporation

99.

 

Stonebriar Management Corp.

 

Texas corporation

100.

 

The Club at Cimarron, Inc.

 

Texas corporation

101.

 

The Downtown Club, Inc.

 

Texas corporation

 


 

102.

 

The Plaza Club of San Antonio, Inc.

 

Texas corporation

103.

 

Timarron Golf Club, Inc.

 

Texas corporation

104.

 

Tower Club of Dallas, Inc.

 

Texas corporation

105.

 

Walnut Creek Management Corporation

 

Texas corporation

106.

 

West Park Club, Inc.

 

Texas corporation

107.

 

Westlake City Club, Inc.

 

Texas corporation

108.

 

Wildflower Country Club, Inc.

 

Texas corporation

109.

 

Willow Creek Management, Inc.

 

Texas corporation

110.

 

ClubCorp Golf of Texas, L.P.

 

Texas limited partnership

111.

 

Greenbrier Country Club, Inc.

 

Virginia corporation

112.

 

Operations Company for Homestead, Inc.

 

Virginia corporation

113.

 

River Creek Country Club, Inc.

 

Virginia corporation

114.

 

Stonehenge Club, Inc.

 

Virginia corporation

115.

 

Tower City Club of Virginia, Inc.

 

Virginia corporation

116.

 

Town Point Club, Inc.

 

Virginia corporation

117.

 

Columbia Tower Club, Inc.

 

Washington corporation

118.

 

City Club of Washington, Inc.

 

Washington, D.C. corporation

119.

 

Glendale Management Corp.

 

Wisconsin corporation

120.

 

Glendale Racquet Club, Inc.

 

Wisconsin corporation

 


 EX-5.2 347 a2202241zex-5_2.htm EX-5.2

Exhibit 5.2

 

[BAKER & HOSTETLER LLP Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Ohio counsel to Akron Management Corp., Dayton Racquet Club, Inc., Quail Hollow Management, Inc., Shoreby Club Management, Inc., Silver Lake Management Corp. and The Club at Society Center, Inc., each, an Ohio corporation (collectively, the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes.  The Exchange Notes will be issued under, and the Guarantees will be issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee.  The Company will offer the Exchange Notes and the Guarantees in exchange for (the “Exchange Offer”) up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the originals, or duplicates or certified or conformed copies, of the Indenture, the articles of incorporation of each Guarantor, as amended to date, the by-laws of each Guarantor, as amended to date, and such corporate and other records, agreements, documents and other instruments and have made such other investigations as we have considered relevant or necessary in connection with the opinions hereinafter set forth.  With respect to the factual determinations underlying the legal conclusions set forth herein, we have relied upon and assumed the accuracy of all information, representations and warranties set forth in certificates or comparable documents of public officials and of officers and representatives of the Guarantors.  We have not attempted to verify independently such representations and statements.  Without limiting the foregoing, we have not conducted a search of any electronic databases, or the dockets of any court, administrative or other regulatory agency.

 


 

In rendering the opinions set forth herein, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.             Each of the Guarantors is validly existing and in good standing under the laws of the State of Ohio and has the requisite corporate power and authority to execute and deliver the Indenture and its Guarantee and to perform its obligations thereunder.

 

2.             Each of the Guarantors has duly authorized, executed and delivered the Indenture.

 

3.             The execution and delivery of its Guarantee and the performance of its obligations thereunder have been duly authorized by each Guarantor.

 

4.             The execution and delivery by each Guarantor of the Indenture and its Guarantee and the performance of its obligations thereunder and the consummation of the transactions contemplated thereby (a) do not and will not violate its articles of incorporation, as amended to date, or its by-laws, as amended to date, and (b) do not and will not violate any Ohio statute or any rule or regulation issued pursuant to any Ohio statute. No order issued by any State of Ohio court or governmental agency or body of the State of Ohio and binding on any such Guarantor that would have a material and adverse impact on the Exchange Offer has been identified to us by any such Guarantor.

 

We do not express any opinion concerning any law other than the laws of the State of Ohio.  We also express no opinion herein as to (a) securities or blue sky laws or regulations, (b) antitrust or unfair competition laws or regulations, (c) tax or racketeering laws or regulations, or (d) local laws, regulations or ordinances.

 

This opinion letter is provided to the Company as a legal opinion only, and not as a guaranty or warranty of the matters discussed herein. The foregoing opinions are based upon currently existing statutes, rules, regulations and judicial decisions and are rendered as of the date hereof, and we disclaim any obligation to advise you of any change in any of the foregoing sources of law or subsequent developments in law or changes in facts and circumstances that might affect any matters or opinions set forth herein.

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.  In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

Sincerely,

 

/s/ Baker & Hostetler LLP

 

2


 EX-5.3 348 a2202241zex-5_3.htm EX-5.3

Exhibit 5.3

 

[BRADLEY ARANT BOULT CUMMINGS LLP Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special local counsel to The Summit Club, Inc., an Alabama corporation (“Summit”), and Capital City Club of Montgomery, Inc., an Alabama corporation (“Capital City” and, together with Summit, each an “Alabama Guarantor” and collectively, the “Alabama Guarantors”), solely for the purpose of delivering this opinion in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Alabama Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Alabama Guarantors and the other guarantors of guarantees (the “Guarantees”) of the Exchange Notes.  The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Alabama Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”).  The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

In connection with the opinions expressed below, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of (i) the Registration Statement, and (ii) the Indenture (including the Guarantees of the Alabama Guarantors contained therein), which has been filed with the Commission as an exhibit to the Registration Statement.  We have also examined and relied on such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company and the Alabama Guarantors as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.

 

In all such examinations, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents.  As to all questions of fact material to this opinion, we have relied with your consent and without further investigation upon the representations and warranties of the parties contained in the Indenture, upon certificates or statements of government officials, and upon certificates or comparable documents of officers and representatives of the Company and the Alabama Guarantors, including, without limitation, the State Tax Matters Officer’s Certificate (as defined in

 


 

Paragraph 1 below), and have assumed that such certificates and statements were true, correct and complete as of the date made and remain true, correct and complete through the date hereof.

 

In rendering the opinions expressed below, we have assumed the following with respect to all the transactions and documents (including, without limitation, the Indenture and the Exchange Notes) referred to herein:

 

(i)                                     All the parties to such documents other than the Alabama Guarantors are duly organized and validly existing and have the power and authority (corporate or other) to execute, deliver and perform their obligations under such documents.

 

(ii)                                  All such documents have been duly authorized, executed and delivered by all parties thereto other than the Alabama Guarantors and constitute the legal, valid and binding obligations of all parties thereto.

 

(iii)                               The form and terms contained in the Exchange Notes conform in all respects to the descriptions thereof contained in the Indenture.

 

(iv)                              None of the parties (other than the Alabama Guarantors) to the Indenture is transacting business in the State of Alabama unless it is properly registered or qualified to transact business in the State of Alabama or exempt from such registration or qualification.

 

(v)                                 Each of the Alabama Guarantors has received adequate consideration and value in exchange for incurring the obligations and liabilities imposed on it by or in connection with the Indenture, including, without limitation, the Guarantees of the Exchange Notes provided for therein.

 

Based on the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.               Each of the Alabama Guarantors is a corporation validly existing and in good standing in the State of Alabama. In giving the opinion contained in this paragraph, we have relied solely on the certificates of the Alabama Secretary of State and the Alabama Department of Revenue, copies of which are attached hereto as Exhibits A-1 and A-2, and we have not made any independent investigation with respect thereto.  Without limiting the foregoing, with respect to the good standing of each of the Alabama Guarantors in the State of Alabama, we have relied solely upon the above-referenced certificates and the certificate of the Secretary of each of the Alabama Guarantors dated March 24, 2011, with respect to the filing by each of them of extensions to file their respective business privilege tax returns for their most recently ended tax year and the payment of all business privilege taxes owed by the Alabama Guarantors through the date hereof, a copy of which is attached hereto as Exhibit B (the “State Tax Matters Officer’s Certificate”).

 

2.               Each Alabama Guarantor has all requisite corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2


 

3.               The execution, delivery and performance by the Alabama Guarantors of the Indenture, including the issuance of the Guarantees contained therein, have been duly authorized by all necessary corporate action on the part of each of the Alabama Guarantors.

 

4.               The Indenture has been duly executed and delivered by each of the Alabama Guarantors and, when the Exchange Notes have been executed and delivered in accordance with the Indenture, the Guarantees with respect thereto will have been duly issued by each of the Alabama Guarantors.

 

5.               The execution and delivery by each Alabama Guarantor of the Indenture and the performance of its obligations thereunder do not (a) conflict with or violate any provision of the Amended and Restated Articles of Incorporation or Amended and Restated Bylaws of such Alabama Guarantor, or (b) conflict with or violate any law, rule, or regulation of the State of Alabama known to us to be applicable to transactions of the type contemplated by the Indenture and the Guarantees contained therein; provided, that we express no opinion as to any securities laws or regulations of the State of Alabama or any other jurisdiction.

 

The foregoing opinions are subject to the following limitations, qualifications, comments and exceptions:

 

(a)               We express no opinion as to the validity or enforceability of the Indenture, the Exchange Notes or the Guarantees, any provisions of such documents, or any other agreement by or against any person.

 

(b)              We express no opinion as to (i) the existence, adequacy, payment or receipt of consideration or value or (ii) the title to any property of either of the Alabama Guarantors.

 

(c)               We express no opinion with respect to whether the execution, delivery and performance of any of the Indenture, the Exchange Notes or the Guarantee violates, conflicts with or causes a default under, or will violate, conflict with or cause a default under, the provisions of any indenture, instrument or agreement to which either of the Alabama Guarantors is a party or is subject or by which it or any of its or their property is bound.

 

(d)              We express no opinion as to any matters regarding state or federal tax law and have not considered and express no opinion regarding any federal or state securities or blue sky laws or regulations.

 

(e)               We call to your attention the fact that any party which exercises in Alabama any of the rights or remedies provided in the Indenture, the Exchange Notes, the Guarantees or any other agreement or instrument may be required to qualify or register to do business in the State of Alabama before exercising such rights or remedies.

 

The foregoing opinions are limited to the laws of general application of the State of Alabama, and we do not express any opinion as to federal law or the laws of any other state or

 

3


 

jurisdiction, or to any local laws, ordinances or rules of any municipality, county or other political subdivision of the State of Alabama.

 

The opinions expressed herein are for the benefit of the Company and the Alabama Guarantors in connection with the Registration Statement and for the benefit of Simpson Thacher & Bartlett LLP in connection with the opinion letter it will furnish to you to fulfill the requirements of Item 601(b)(5) of Regulation S-K in connection with the Registration Statement. This opinion letter may not be quoted by the Company or any other person without the prior written consent of this firm, except as set forth herein. This opinion letter is limited to the matters expressly stated herein, and no opinion is to be implied or may be inferred beyond the matters expressly stated herein. These opinions are rendered as of the date hereof, and we assume no obligation to advise you, Simpson Thacher & Bartlett LLP or any other party of facts, circumstances, events or developments which may be brought to our attention after the date hereof and which may alter, affect or modify these opinions.

 

We hereby consent to Simpson Thacher & Bartlett LLP’s reliance upon this opinion letter in the formation of its opinion to the Company on the validity and enforceability of the Exchange Notes and the Guarantees and to the use of our name under the caption “Legal Matters” in the prospectus constituting part of the Registration Statement. We also consent to the filing of this opinion letter as Exhibit 5.3 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.

 

 

 

Very truly yours,

 

 

 

 

 

/s/ Bradley Arant Boult Cummings LLP

 

4

 

EXHIBIT A-1

 

CERTIFICATES OF THE ALABAMA SECRETARY OF STATE

 

(see attached certificates)

 


 

Beth Chapman

P. O. Box 5616

Secretary of State

Montgomery, AL 36103-5616

 

STATE OF ALABAMA

 

I, Beth Chapman, Secretary of State of Alabama, having custody of the Great and Principal Seal of said State, do hereby certify that the entity records on file in this office disclose that Capital City Club of Montgomery, Inc. was formed in Montgomery County, Alabama on March 7, 1977. The Alabama Entity Identification number for this entity is 045-579. I further certify that the records do not disclose that said entity has been dissolved, cancelled or terminated.

 

 

 

In Testimony Whereof, I have hereunto set my hand and affixed the Great Seal of the State, at the Capitol, in the city of Montgomery, on this day.

 

 

 

3/18/2011

 

Date

 

 

 

 

[Alabama State Seal]

/s/ Beth Chapman

20110318000007329

Beth Chapman

Secretary of State

 


 

Beth Chapman

P. O. Box 5616

Secretary of State

Montgomery, AL 36103-5616

 

STATE OF ALABAMA

 

I, Beth Chapman, Secretary of State of Alabama, having custody of the Great and Principal Seal of said State, do hereby certify that the entity records on file in this office disclose that The Summit Club, Inc. was formed in Montgomery County, Alabama on February 23, 1989. The Alabama Entity Identification number for this entity is 129-744. I further certify that the records do not disclose that said entity has been dissolved, cancelled or terminated.

 

 

 

In Testimony Whereof, I have hereunto set my hand and affixed the Great Seal of the State, at the Capitol, in the city of Montgomery, on this day.

 

 

 

3/18/2011

 

Date

 

 

 

 

[Alabama State Seal]

/s/ Beth Chapman

20110318000007329

Beth Chapman

Secretary of State

 


 

EXHIBIT A-2

 

CERTIFICATES OF THE ALABAMA DEPARTMENT OF REVENUE

 

(see attached certificates)

 


 

[Alabama State Seal]

 

State of Alabama

Department of Revenue

 

Certificate of Good Standing

 

Capital City Club of Montgomery, Inc. is in compliance with the requirements in Chapter 14A, Title 40, Code of Alabama 1975 relating to (Business Privilege and Corporate Shares Tax), as applicable through the taxable year 12/31/2010.

 

 

 

 

IN WITNESS WHEREOF, I hereunto set my hand this date of March 22, 2011.

 

 

 

 

 

 

 

 

/s/ illegible

 

 

Director, Individual and Corporate Tax Division

 

 

 

 

 

ATTEST:

 

 

 

 

 

 

 

 

/s/ illegible

 

 

Secretary

 

Business Privilege Tax

 

Phone: 334-353-7923

Request Date: March 21, 2011

 

 

Request Code: 1103216595418

 

 

 


 

[Alabama State Seal]

 

State of Alabama

Department of Revenue

 

Certificate of Good Standing

 

The Summit Club, Inc. is in compliance with the requirements in Chapter 14A, Title 40, Code of Alabama 1975 relating to (Business Privilege and Corporate Shares Tax), as applicable through the taxable year 12/31/2010.

 

 

 

 

IN WITNESS WHEREOF, I hereunto set my hand this date of March 22, 2011.

 

 

 

 

 

 

 

 

/s/ illegible

 

 

Director, Individual and Corporate Tax Division

 

 

 

 

 

ATTEST:

 

 

 

 

 

 

 

 

/s/ illegible

 

 

Secretary

 

Business Privilege Tax

 

Phone: 334-353-7923

Request Date: March 21, 2011

 

 

Request Code: 1103216559422

 

 

 


 

EXHIBIT B

 

STATE TAX MATTERS OFFICER’S CERTIFICATE

 

(see attached certificate)

 


 

CERTIFICATE OF SECRETARY
OF
THE SUMMIT CLUB, INC.
AND
CAPITAL CITY CLUB OF MONTGOMERY, INC.

 

I, the undersigned, Secretary of The Summit Club, Inc., an Alabama corporation (“Summit”), and Capital City Club of Montgomery, Inc., an Alabama corporation (“Capital City” and, together with Summit, the “Alabama Guarantors”), DO HEREBY CERTIFY to Bradley Arant Boult Cummings LLP, in connection with the opinion to be rendered at the request of the Alabama Guarantors, that:

 

1.             I am the duly elected and acting Secretary of each of the Alabama Guarantors and have personal knowledge of the matters set forth in this Certificate.

 

2.             Each of the Alabama Guarantors has paid the extension payments due and payable, and attached as Exhibit A hereto is a true and correct copy of evidence of payment of the amounts shown thereon, for each of the Alabama Guarantors.

 

3.             Each of the Alabama Guarantors has paid all tax payments due and payable to the Alabama Department of Revenue or any other instrumentality of the state or local government of the State of Alabama, and, as reflected in Exhibit A hereto, has timely filed an extension (together with the payment of all taxes or tax estimates required by the Alabama Department of Revenue) of its business privilege tax return for the immediately preceding tax year.

 

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate, as the Secretary of each of the Alabama Guarantors, on and as of this 24 day of March, 2011.

 

 

 

 

/s/ Ingrid J. Keiser

 

 

Ingrid J. Keiser,

 

 

Secretary,

 

 

The Summit Club, Inc. and

 

 

Capital City Club of Montgomery, Inc.

 


 

EXHIBIT A

 

Automatic Extension Payment Form

 


 

ACH Initiation

 

Report Date:

03/15/2011

CLUBCORP MEZZANINE

 

Report Time:

11:50:55 AM

 

Batch Summary Report by ID Number

 

Company Name:

CLUBCORP USA TAX

Effective Date:

03/15/2011

ACH ID:

9023238001

Batch Sequence:

2

Application Name:

Alabama Tax Payments

Database Name:

AP - AL Corporate

Batch Status:

Submitted

 

 

 

Name

 

ID

 

Amount 

 

D/C

 

Bank ID

 

Account #

 

Acct
Type

 

Trace #

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CAP
MONTGOMER
Y 07771

 

PS07515479
92

 

$

5,153.00

 

C

 

062001186

 

#######

 

C

 

0031188

 

Addenda: 705TXP*PS0751547992*07771*101231*T*0000515300* * \ 00010031188

 

CAP
MONTGOMER
Y 07775

 

PS07515479
92

 

$

10.00

 

C

 

062001186

 

#######

 

C

 

0031185

 

Addenda: 705TXP*PS0751547992*07775*101231*T*0000001000* * \ 00010031185

 

SUMMIT
07776

 

PS07522770
08

 

$

10.00

 

C

 

062001186

 

#######

 

C

 

0031187

 

Addenda: 705TXP*PS0752277008*07776*101231*T*0000001000* * \ 00010031187

 

SUMMIT
07771

 

PS07522770
08

 

$

851.00

 

C

 

062001186

 

#######

 

C

 

0031186

 

Addenda: 705TXP*PS0752277008*07771*101231*T*0000085100* * \ 00010031186

 

 

 

 

Total Amount in Batch

 

Total Count in Batch

 

Debits

 

$

0.00

 

0

 

Credits

 

$

6,024.00

 

4

 

Prenotes

 

$

0.00

 

0

 

 

Company Name:

CLUBCORP USA TAX

Effective Date:

03/15/2011

ACH ID:

9023238001

Batch Sequence:

3

Application Name:

Alabama Tax Payments

Database Name:

AP - AL Corporate

Batch Status:

Submitted

 

 

 

Name

 

ID

 

Amount 

 

D/C

 

Bank ID

 

Account #

 

Acct
Type

 

Trace #

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CLUBCORP
USA 07776

 

PS07521148
56

 

$

10.00

 

C

 

062001186

 

#######

 

C

 

0031196

 

Addenda: 705TXP*PS0752114856*07776*101231*T*0000001000* * \ 00010031196

 

CLUBCORP
USA 07771

 

PS07521148
56

 

$

100.00

 

C

 

062001186

 

#######

 

C

 

0031195

 

Addenda: 705TXP*PS0752114856*07771*101231*T*0000010000* * \ 00010031195

 

 

 

 

Total Amount in Batch

 

Total Count in Batch

 

Debits

 

$

0.00

 

0

 

Credits

 

$

110.00

 

2

 

Prenotes

 

$

0.00

 

0

 

 

Company Name:

CLUBCORP USA TAX

Effective Date:

03/15/2011

ACH ID:

9023238001

Batch Sequence:

2

Application Name:

California Tax Payments

Database Name:

AP - CA Corp

Batch Status:

Submitted

 

 

 


 EX-5.4 349 a2202241zex-5_4.htm EX-5.4

Exhibit 5.4

 

[Brownstein Hyatt Farber Schreck Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special California counsel to ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), Aliso Viejo Golf Club Joint Venture, a California general partnership (“Aliso Viejo”), and MH Villas, Inc., a California corporation (“MH Villas” and, together with Aliso Viejo, the “California Guarantors”), in connection with the filing of the Registration Statement on Form S-4 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of its 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors (as defined below), including the California Guarantors, of guarantees with respect to the Exchange Notes (the “Guarantees”) in exchange for up to $415,000,000 aggregate principal amount of the Company’s outstanding 10% Senior Notes due 2018 and the related guarantees. The Exchange Notes and the Guarantees will be issued pursuant to that certain Indenture, dated as of November 30, 2010 (the “Indenture”), by and among the Company, the subsidiaries of the Company party thereto as guarantors (the “Guarantors”), including the California Guarantors, and Wilmington Trust FSB, as trustee.

 

In our capacity as such counsel, we are familiar with the proceedings taken and proposed to be taken by the Company and the California Guarantors in connection with the authorization and issuance of the Exchange Notes and the Guarantees, all as referenced in the Registration Statement. For purposes of this opinion letter, we have assumed all such proceedings will be timely completed in the manner presently proposed and the terms of such issuance will be in compliance with applicable laws.

 

We have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction as being true copies of the Indenture, the Registration Statement, the form of the Exchange Notes, the organizational documents of each of the California Guarantors, as amended to date, the resolutions of each of the California Guarantors with respect to the Guarantees and such other documents, agreements, instruments and corporate records as we have deemed necessary or appropriate for the purpose of issuing this opinion letter. We have also obtained from officers and other representatives and agents of the Company and the California Guarantors and from public officials, and have relied upon, such certificates, representations and assurances as we have deemed necessary and appropriate for the purpose of issuing this opinion letter.

 

Without limiting the generality of the foregoing, in our examination and in rendering this opinion letter, we have, with your permission, assumed without independent verification, that (i) except to the extent set forth in opinion paragraphs 2 and 3 below, each document we reviewed has been duly

 


 

authorized, executed and delivered by the parties thereto to the extent due authorization, execution and delivery are prerequisites to the effectiveness thereof; (ii) except to the extent set forth in our opinions below, the obligations of each party set forth in the documents we have reviewed are its valid and binding obligations, enforceable against such party in accordance with their respective terms; (iii) the statements of fact and representations and warranties set forth in the documents we reviewed are true and correct; (iv) each natural person executing a document has sufficient legal capacity to do so; (v) all documents submitted to us as originals are authentic, the signatures on all documents that we examined are genuine, and all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies conform to the original documents; (vi) all documents that we examined accurately describe and contain the mutual understanding of the parties thereto and there are no oral or written agreements or understandings, and there is no course of prior dealing, between or among any of the parties that would in any manner vary or supplement the terms and provisions of such documents, or of the relationships set forth therein, or which would constitute a waiver of any of the provisions thereof by the actions or conduct of the parties or otherwise, or which would have an effect on the opinions rendered herein; (vii) the organizational documents and the resolutions of each of the California Guarantors that we reviewed and on which we relied in connection with the issuance of our opinion letter dated as of November 30, 2010, have not in any way been amended, revoked, rescinded or modified since November 30, 2010 and remain in full force and effect; and (viii) all corporate and partnership records made available to us by the California Guarantors, and all public records we have reviewed, are accurate and complete.

 

We are qualified to practice law in the State of California. The opinions set forth herein are expressly limited to and based exclusively on the internal laws of the State of California in effect on the date hereof, and we do not purport to be experts on, or to express any opinion with respect to the applicability or effect of, the laws of any other jurisdiction or as to matters of local law or the laws, rules, regulations or ordinances of local governmental departments or agencies within the State of California. We express no opinion herein concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or other authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities laws, rules or regulations, any state securities or “Blue Sky” laws, rules or regulations, any antitrust or unfair competition laws, rules or regulations, or any tax or racketeering laws, rules or regulations.

 

Based on the foregoing, and in reliance thereon, and having regard to legal considerations and other information that we deem relevant, we are of the opinion that:

 

1.             MH Villas is duly incorporated, validly existing and in good standing under the laws of the State of California and has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder. Aliso Viejo is duly formed, validly existing and in good standing under the laws of the State of California and has the general partnership power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2.             Each of the California Guarantors has duly authorized, executed and delivered the Indenture.

 

3.             The Guarantees have been duly authorized by each of the California Guarantors.

 

4.             The execution and delivery by each of the California Guarantors of the Indenture, the performance by each of the California Guarantors of its obligations thereunder and the consummation of the transactions contemplated thereby do not violate (a) the organizational documents of each of the California Guarantors, as amended to date, (b) any applicable California laws or (c) any order, writ, judgment, injunction or decree issued by any court or governmental authority, agency or body of the State of California (excluding its political subdivisions and local agencies) under any applicable

 

2


 

California law and identified to us by any California Guarantor to be presently in effect and binding on any of the California Guarantors (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).

 

The opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing.

 

The opinions expressed herein are based upon the applicable California laws and the facts in existence as of the date of this opinion letter. In delivering this opinion letter to you, we disclaim any obligation to update or supplement the opinions set forth herein or to apprise you of any changes in such laws or facts after such time as the Registration Statement is declared effective. No opinion is offered or implied as to any matter, and no inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the opinions set forth herein.

 

We hereby consent to your filing this opinion letter as an exhibit to the Registration Statement and to the reference therein to our firm under the heading “Legal Matters.” In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Subject to all of the qualifications, limitations, exceptions, restrictions and assumptions set forth herein, Simpson Thacher & Bartlett LLP may rely on this opinion letter as if it were an addressee hereof on this date for the sole purpose of rendering its opinion letter to the Company relating to the Exchange Notes and the Guarantees, as filed with the Commission as Exhibit 5.1 to the Registration Statement.

 

Very truly yours,

 

 

 

 

 

/s/ Brownstein Hyatt Farber Schreck, LLP

 

 

 

3


 EX-5.5 350 a2202241zex-5_5.htm EX-5.5

Exhibit 5.5

 

[Brownstein Hyatt Farber Schreck Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Colorado counsel to ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), and Aspen Glen Golf Club Management Company, a Colorado corporation (the “Colorado Guarantor”), in connection with the filing of the Registration Statement on Form S-4 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of its 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors (as defined below), including the Colorado Guarantor, of guarantees with respect to the Exchange Notes (the “Guarantees”) in exchange for up to $415,000,000 aggregate principal amount of the Company’s outstanding 10% Senior Notes due 2018 and the related guarantees. The Exchange Notes and the Guarantees will be issued pursuant to that certain Indenture, dated as of November 30, 2010 (the “Indenture”), by and among the Company, the subsidiaries of the Company party thereto as guarantors (the “Guarantors”), including the Colorado Guarantor, and Wilmington Trust FSB, as trustee.

 

In our capacity as such counsel, we are familiar with the proceedings taken and proposed to be taken by the Company and the Colorado Guarantor in connection with the authorization and issuance of the Exchange Notes and the Guarantees, all as referenced in the Registration Statement. For purposes of this opinion letter, we have assumed all such proceedings will be timely completed in the manner presently proposed and the terms of such issuance will be in compliance with applicable laws.

 

We have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction as being true copies of the Indenture, the Registration Statement, the form of the Exchange Notes, the articles of incorporation and bylaws, each as amended to date, of the Colorado Guarantor, the resolutions of the board of directors of the Colorado Guarantor with respect to the Guarantees and such other documents, agreements, instruments and corporate records as we have deemed necessary or appropriate for the purpose of issuing this opinion letter. We have also obtained from officers and other representatives and agents of the Company and the Colorado Guarantor and from public officials, and have relied upon, such certificates, representations and assurances as we have deemed necessary and appropriate for the purpose of issuing this opinion letter.

 

Without limiting the generality of the foregoing, in our examination and in rendering this opinion letter, we have, with your permission, assumed without independent verification, that (i) except to the extent set forth in opinion paragraphs 2 and 3 below, each document we reviewed has been duly authorized, executed and delivered by the parties thereto to the extent due authorization, execution and

 


 

delivery are prerequisites to the effectiveness thereof; (ii) except to the extent set forth in our opinions below, the obligations of each party set forth in the documents we have reviewed are its valid and binding obligations, enforceable against such party in accordance with their respective terms; (iii) the statements of fact and representations and warranties set forth in the documents we reviewed are true and correct; (iv) each natural person executing a document has sufficient legal capacity to do so; (v) all documents submitted to us as originals are authentic, the signatures on all documents that we examined are genuine, and all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies conform to the original documents; (vi) all documents that we examined accurately describe and contain the mutual understanding of the parties thereto and there are no oral or written agreements or understandings, and there is no course of prior dealing, between or among any of the parties that would in any manner vary or supplement the terms and provisions of such documents, or of the relationships set forth therein, or which would constitute a waiver of any of the provisions thereof by the actions or conduct of the parties or otherwise, or which would have an effect on the opinions rendered herein; (vii) the articles of incorporation, bylaws and resolutions of the board of directors of the Colorado Guarantor that we reviewed and on which we relied in connection with the issuance of our opinion letter dated as of November 30, 2010, have not in any way been amended, revoked, rescinded or modified since November 30, 2010 and remain in full force and effect; and (viii) all corporate records made available to us by the Colorado Guarantor, and all public records we have reviewed, are accurate and complete.

 

We are qualified to practice law in the State of Colorado. The opinions set forth herein are expressly limited to and based exclusively on the internal laws of the State of Colorado in effect on the date hereof, and we do not purport to be experts on, or to express any opinion with respect to the applicability or effect of, the laws of any other jurisdiction or as to matters of local law or the laws, rules, regulations or ordinances of local governmental departments or agencies within the State of Colorado. We express no opinion herein concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or other authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities laws, rules or regulations, any state securities or “Blue Sky” laws, rules or regulations, any antitrust or unfair competition laws, rules or regulations, or any tax or racketeering laws, rules or regulations.

 

Based on the foregoing, and in reliance thereon, and having regard to legal considerations and other information that we deem relevant, we are of the opinion that:

 

1.             The Colorado Guarantor is duly incorporated, validly existing and in good standing under the laws of the State of Colorado and has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2.             The Colorado Guarantor has duly authorized, executed and delivered the Indenture.

 

3.             The Guarantees have been duly authorized by the Colorado Guarantor.

 

4.             The execution and delivery by the Colorado Guarantor of the Indenture, the performance by the Colorado Guarantor of its obligations thereunder and the consummation of the transactions contemplated thereby do not violate (a) the articles of incorporation and bylaws, each as amended to date, of the Colorado Guarantor, (b) any applicable Colorado laws or (c) any order, writ, judgment, injunction or decree issued by any court or governmental authority, agency or body of the State of Colorado (excluding its political subdivisions and local agencies) under any applicable Colorado law and identified to us by the Colorado Guarantor to be presently in effect and binding on the Colorado Guarantor (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).

 

2


 

The opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing.

 

The opinions expressed herein are based upon the applicable Colorado laws and the facts in existence as of the date of this opinion letter. In delivering this opinion letter to you, we disclaim any obligation to update or supplement the opinions set forth herein or to apprise you of any changes in such laws or facts after such time as the Registration Statement is declared effective. No opinion is offered or implied as to any matter, and no inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the opinions set forth herein.

 

We hereby consent to your filing this opinion letter as an exhibit to the Registration Statement and to the reference therein to our firm under the heading “Legal Matters.” In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Subject to all of the qualifications, limitations, exceptions, restrictions and assumptions set forth herein, Simpson Thacher & Bartlett LLP may rely on this opinion letter as if it were an addressee hereof on this date for the sole purpose of rendering its opinion letter to the Company relating to the Exchange Notes and the Guarantees, as filed with the Commission as Exhibit 5.1 to the Registration Statement.

 

Very truly yours,

 

 

 

 

 

/s/ Brownstein Hyatt Farber Schreck, LLP

 

 

 

3


 EX-5.6 351 a2202241zex-5_6.htm EX-5.6

Exhibit 5.6

 

[Brownstein Hyatt Farber Schreck Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Nevada counsel to ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), and its subsidiaries listed on Schedule I hereto (collectively, the “Nevada Guarantors”), in connection with the filing of the Registration Statement on Form S-4 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of its 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors (as defined below), including the Nevada Guarantors, of guarantees with respect to the Exchange Notes (the “Guarantees”) in exchange for up to $415,000,000 aggregate principal amount of the Company’s outstanding 10% Senior Notes due 2018 and the related guarantees. The Exchange Notes and the Guarantees will be issued pursuant to that certain Indenture, dated as of November 30, 2010 (the “Indenture”), by and among the Company, the subsidiaries of the Company party thereto as guarantors (the “Guarantors”), including the Nevada Guarantors, and Wilmington Trust FSB, as trustee.

 

In our capacity as such counsel, we are familiar with the proceedings taken and proposed to be taken by the Company and the Nevada Guarantors in connection with the authorization and issuance of the Exchange Notes and the Guarantees, all as referenced in the Registration Statement. For purposes of this opinion letter, we have assumed all such proceedings will be timely completed in the manner presently proposed and the terms of such issuance will be in compliance with applicable laws.

 

We have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction as being true copies of the Indenture, the Registration Statement, the form of the Exchange Notes, the articles of incorporation and bylaws, each as amended to date, of each of the Nevada Guarantors, the resolutions of the board of directors of each of the Nevada Guarantors with respect to the Guarantees and such other documents, agreements, instruments and corporate records as we have deemed necessary or appropriate for the purpose of issuing this opinion letter. We have also obtained from officers and other representatives and agents of the Company and the Nevada Guarantors and from public officials, and have relied upon, such certificates, representations and assurances as we have deemed necessary and appropriate for the purpose of issuing this opinion letter.

 

Without limiting the generality of the foregoing, in our examination and in rendering this opinion letter, we have, with your permission, assumed without independent verification, that (i) except to the extent set forth in opinion paragraphs 2 and 3 below, each document we reviewed has been duly authorized, executed and delivered by the parties thereto to the extent due authorization, execution and delivery are prerequisites to the effectiveness thereof; (ii) except to the extent set forth in our opinions

 


 

below, the obligations of each party set forth in the documents we have reviewed are its valid and binding obligations, enforceable against such party in accordance with their respective terms; (iii) the statements of fact and representations and warranties set forth in the documents we reviewed are true and correct; (iv) each natural person executing a document has sufficient legal capacity to do so; (v) all documents submitted to us as originals are authentic, the signatures on all documents that we examined are genuine, and all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies conform to the original documents; (vi) all documents that we examined accurately describe and contain the mutual understanding of the parties thereto and there are no oral or written agreements or understandings, and there is no course of prior dealing, between or among any of the parties that would in any manner vary or supplement the terms and provisions of such documents, or of the relationships set forth therein, or which would constitute a waiver of any of the provisions thereof by the actions or conduct of the parties or otherwise, or which would have an effect on the opinions rendered herein; (vii) the articles of incorporation, bylaws and resolutions of the board of directors of each of the Nevada Guarantors that we reviewed and on which we relied in connection with the issuance of our opinion letter dated as of November 30, 2010, have not in any way been amended, revoked, rescinded or modified since November 30, 2010 and remain in full force and effect; and (viii) all corporate records made available to us by the Nevada Guarantors, and all public records we have reviewed, are accurate and complete.

 

We are qualified to practice law in the State of Nevada. The opinions set forth herein are expressly limited to and based exclusively on the internal laws of the State of Nevada in effect on the date hereof, and we do not purport to be experts on, or to express any opinion with respect to the applicability or effect of, the laws of any other jurisdiction or as to matters of local law or the laws, rules, regulations or ordinances of local governmental departments or agencies within the State of Nevada. We express no opinion herein concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or other authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities laws, rules or regulations, any state securities or “Blue Sky” laws, rules or regulations, any antitrust or unfair competition laws, rules or regulations, or any tax or racketeering laws, rules or regulations.

 

Based on the foregoing, and in reliance thereon, and having regard to legal considerations and other information that we deem relevant, we are of the opinion that:

 

1.             Each of the Nevada Guarantors is duly incorporated, validly existing and in good standing under the laws of the State of Nevada and has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2.             Each of the Nevada Guarantors has duly authorized, executed and delivered the Indenture.

 

3.             The Guarantees have been duly authorized by each of the Nevada Guarantors.

 

4.             The execution and delivery by each of the Nevada Guarantors of the Indenture, the performance by each of the Nevada Guarantors of its obligations thereunder and the consummation of the transactions contemplated thereby do not violate (a) the articles of incorporation and bylaws, each as amended to date, of each of the Nevada Guarantors, (b) any applicable Nevada laws or (c) any order, writ, judgment, injunction or decree issued by any court or governmental authority, agency or body of the State of Nevada (excluding its political subdivisions and local agencies) under any applicable Nevada law and identified to us by any Nevada Guarantor to be presently in effect and binding on any of the Nevada Guarantors (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).

 

2


 

The opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing.

 

The opinions expressed herein are based upon the applicable Nevada laws and the facts in existence as of the date of this opinion letter. In delivering this opinion letter to you, we disclaim any obligation to update or supplement the opinions set forth herein or to apprise you of any changes in such laws or facts after such time as the Registration Statement is declared effective. No opinion is offered or implied as to any matter, and no inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the opinions set forth herein.

 

We hereby consent to your filing this opinion letter as an exhibit to the Registration Statement and to the reference therein to our firm under the heading “Legal Matters.” In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Subject to all of the qualifications, limitations, exceptions, restrictions and assumptions set forth herein, Simpson Thacher & Bartlett LLP may rely on this opinion letter as if it were an addressee hereof on this date for the sole purpose of rendering its opinion letter to the Company relating to the Exchange Notes and the Guarantees, as filed with the Commission as Exhibit 5.1 to the Registration Statement.

 

Very truly yours,

 

 

 

 

 

/s/ Brownstein Hyatt Farber Schreck, LLP

 

 

 

3


 

SCHEDULE I

 

NEVADA GUARANTORS

 

  1.           Canyon Gate at Las Vegas, Inc.

 

  2.           ClubCorp — Asia

 

  3.           ClubCorp Asia Investments Inc.

 

  4.           ClubCorp Financial Management Company

 

  5.           ClubCorp International, Inc.

 

  6.           ClubCorp Mexico, Inc.

 

  7.           ClubCorp Publications, Inc.

 

  8.           GP Bear’s Best Las Vegas, Inc.

 

  9.           Master Club, Inc.

 

10.           Society Management, Inc.

 


 EX-5.7 352 a2202241zex-5_7.htm EX-5.7

Exhibit 5.7

 

[Dickinson Wright PLLC Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, TX 75234

 

Re:                               $415,000,000 10% Senior Notes due 2018

 

Ladies and Gentlemen:

 

We have acted as special counsel in the State of Michigan (the “State”) to Oak Pointe Country Club, Inc., a Michigan corporation, and Renaissance Club, Inc., a Michigan corporation (individually, a “Guarantor” and collectively, the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes.  The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”).  The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.  Terms not defined herein shall have the meanings assigned thereto in the Indenture.

 

Our representation of the Guarantors has been limited solely to the issuance of the Guarantees by the Guarantors as contemplated in the Indenture.  We have not represented the Guarantors generally or in connection with matters not expressly set forth in the Indenture, and our knowledge of the Guarantors’ general business affairs and the opinions expressed herein are limited accordingly.

 

In rendering our opinion we have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement. We have also examined (i) each Guarantor’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”); (ii) a copy of each Guarantor’s Amended and Restated Bylaws, certified to us by each Guarantor’s Secretary as of November 30, 2010 to be complete, current and inclusive of all amendments (the “Bylaws”), (iii) copies of minutes of meetings or consent resolutions of the Board of Directors of each Guarantor authorizing the transactions contemplated by the Indenture and certified to us by each Guarantor’s Secretary as of November 30, 2010 to be complete and currently in effect without amendment, revision or repeal; (iv) a certified copy of a Certificate of Good Standing issued by the Bureau of Commercial Services of the Michigan Department of Energy, Labor & Economic Growth (the “MDLEG”) regarding each Guarantor’s good standing in the State, dated March 24, 2011; and (v) such other certificates of public officials, corporate documents and records and other certificates and instruments as we have deemed necessary

 


 

for the purposes of the opinion herein expressed.  As to various questions of fact material to our opinion, we have relied upon certificates and written statements of officers of each Guarantor.

 

For purposes of this opinion, we have, with your permission, assumed without independent investigation that: (i) the Company is a corporation, duly formed, validly existing and in good standing under the laws of the State of Delaware; (ii) except with respect to the Guarantors, each of the Indenture and the Exchange Notes has been duly executed and delivered by the parties thereto; (iii) except with respect to the Guarantors, each of the Indenture and the Exchange Notes has been duly authorized by the parties thereto; (iv) each of the Indenture and the Exchanges Notes is the legal, valid and binding obligation of, and is enforceable in accordance with its respective terms against, each of the parties thereto; (v) each document submitted to us as an original is authentic; (vi) each document submitted to us as a certified, conformed or photostatic copy conforms to the authentic original document; (vii) no consent or authorization of, no filing with, notice to or other act by or in respect of any governmental authority of any jurisdiction other than the State or any other person is required with respect to the Guarantors in connection with the execution and delivery by the Guarantors of the Indenture or, if such consent, authorization, filing, notice or other act is required, it has been or will be obtained; (viii) the persons who executed, acknowledged and delivered the Indenture and the Exchange Notes on behalf of each of the parties thereto (other than the Guarantors) were duly authorized to do so by each such party; (ix) the execution and delivery of the Indenture and the Exchange Notes will be free of intentional or unintentional mistake, fraud, undue influence, duress, or criminal activity, and each natural person executing any of the Indenture and the Exchange Notes on behalf of any party thereto has sufficient legal capacity to enter into such document in a representative capacity and is acting voluntarily, in good faith and not subject to duress or coercion; (x) except to the extent set forth in paragraph 4(b) below, neither the execution and delivery of, nor the performance by the parties of their respective obligations under, the Indenture contravenes or conflicts with any law, rule or regulation of, or violates the public policy of, any jurisdiction, or any judgment, order or decree of any court or regulatory body applicable to the parties or by which the parties may be bound; (xi) there are no actions, proceedings, orders, rulings or judgments affecting the matters addressed in the opinions expressed herein to which any of the parties that is a party to the Indenture is a party or by which any of them is bound; there are no facts, events or circumstances other than those expressed in the Indenture that would enlarge, diminish or otherwise modify or affect the rights, titles, interests, obligations or liabilities of such parties, or any of them, and which would have an effect on the opinions hereinafter set forth; and there are no other understandings, agreements, documents or instruments which are invalid or unenforceable or which expand or modify the respective rights and obligations of such parties as they are set forth in the Indenture, or which otherwise have any material effect on the opinions rendered herein; (xii) each of the Guarantors intended to deliver the Indenture to the Initial Purchaser; (xiii) the Articles of Incorporation and Bylaws of each Guarantor have not been modified or amended since November 30, 2010; and (xiv) the resolutions of the Board of Directors of each Guarantor authorizing the transactions contemplated by the Indenture have not been modified or amended since November 30, 2010, and the Board of Directors of each respective Guarantor has not adopted any other resolutions relating to the Exchange Notes or the transactions contemplated by the Indenture.

 

2


 

We express no opinion with respect to the effect of any law other than the law of the State.

 

Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the qualifications and exceptions herein contained, we are of the opinion that:

 

1.                                       Each Guarantor is a corporation validly existing and in good standing under the laws of the State, and has the corporate power and authority to execute and deliver, and perform its respective obligations under, the Indenture.

 

2.                                       The execution and delivery of the Indenture by each Guarantor and the performance of such Guarantor’s obligations under the Indenture have been duly authorized by all requisite action of the board of directors of such Guarantor.  No other corporate action is required for the Indenture to be duly authorized, executed, delivered and the obligations thereunder to be performed.  The execution and delivery of the Indenture by (a) any one of Eric Affeldt, David Woodyard, Curt McClellan or Ingrid Keiser on behalf of Renaissance Club, Inc. and (b) any one of Eric Affeldt, Mark Burnett, Curt McClellan or Ingrid Keiser on behalf of Oak Pointe Country Club, Inc. have been duly authorized by all requisite action of the board of directors of each such Guarantor.

 

3.                                       The Guarantees have been duly authorized and issued by each such Guarantor.

 

4.                                       The execution and delivery by each Guarantor of the Indenture do not, and the performance by the Guarantors of their respective payment obligations thereunder will not, (a) conflict with or violate any provision of the Articles of Incorporation or Bylaws of each Guarantor, (b) based solely on our review of the factual matters set forth in the Indenture and our general familiarity with laws, rules and regulations of general application which in our experience are commonly applicable in the State to transactions of the nature contemplated by the Indenture, conflict with or violate any law, rule, regulation or ordinance of the State applicable to the Guarantors, or (c) to our knowledge, do not conflict with, constitute a default under, or violate any judgment, writ, injunction, decree, order or ruling of any court or governmental authority of the State binding on the Guarantors.

 

Our opinions expressed above are subject to the following qualifications:

 

(a)                                  We have not reviewed for purposes of our opinions, and nothing herein shall be construed as an opinion by us as to compliance with, any federal, state or local environmental, zoning, health, safety, building, land use or subdivision laws, ordinances, rules or regulations; federal, state and local taxation laws, rules or regulations (except as expressly set forth herein); any federal or state securities or “blue sky” rules and regulations; labor, ERISA and other employee benefit laws; any Federal or state antitrust or unfair competition laws and regulations (including without limitation the Hart-Scott-Rodino Antitrust Improvements Act); any banking laws, rules or regulations, or any laws relating to fiduciary duties; or any Federal or state law, rule or regulation concerning terrorist activities, including without limitation the USA PATRIOT Act of 2001, as

 

3


 

amended, or the foreign assets control regulations of the U.S. Department of Treasury; any federal or state laws, rules, regulations or policies concerning criminal and civil forfeiture laws; any federal or state racketeering or other law providing for criminal prosecution; or any federal or state patent, trademark, copyright or other federal or state intellectual property laws, rules and regulations.

 

(b)                                 With respect to the opinions set forth in paragraph 1 above, we have exclusively relied upon the certificates of the Bureau of Commercial Services of the MDLEG listed above.

 

(c)                                  If any opinion herein is qualified by the phrase “to our knowledge” with respect to the existence or absence of facts, it is intended to indicate that during the course of our representation of the Guarantors in connection with the Indenture, no information has come to the attention of J. Bryan Williams and Cynthia A. Moore, the attorneys in our Firm engaged in this representation, which would give us actual knowledge of the existence or absence of such facts.  However, with your approval, we have not undertaken any independent investigation to determine the existence or absence of such facts, have not conducted any judgment, litigation or other searches of governmental records, and any limited inquiry undertaken by us during the preparation of this opinion should not be regarded as such an investigation.

 

This opinion is rendered as of the effective date set forth above, and we express no opinion as to circumstances or events which may occur subsequent to such date.

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very truly yours,

 

 

 

 

 

/s/ Dickinson Wright PLLC

 

 

CAM/SED

 

4


 EX-5.8 353 a2202241zex-5_8.htm EX-5.8

Exhibit 5.8

 

[Gardere Wynne Sewell LLP Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Texas counsel to each of the Texas corporations (collectively, the “Texas Corporations,” and each, individually, a “Texas Corporation”) and the Texas limited partnership (the “Texas LP”) listed on Schedule I attached hereto (collectively, the “Texas Entities,” and each, individually, a “Texas Entity”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Texas Entities and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”). The Exchange Notes will be issued as provided in the Indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the Guarantors named therein (including the Texas Entities) and Wilmington Trust FSB, as trustee (the “Trustee”). The Company will offer the Exchange Notes in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.

 

In such capacity, we have examined the Registration Statement and the Indenture (including the Note Guarantees of the Texas Entities set forth in Article 10 of the Indenture), which Indenture has been filed with the Commission as an exhibit to the Registration Statement.

 

For purposes of rendering our opinions set forth herein, we also have examined originals or copies, certified or otherwise authenticated to our satisfaction, of the following documents relating to the Texas Entities:

 

(a)           Amended and Restated Certificate of Formation of each Texas Corporation (other than Hills II of Lakeway, Inc. (“Hills II”)), each as certified by the Secretary of State of the State of Texas (the “Tx SOS”) as of a date on or after March 16, 2011 (with respect to each such Texas Corporation, its “Current Charter”);

 

(b)           Articles of Incorporation of Hills II, as certified by the Tx SOS as of a date on or after March 16, 2011 (the “Hills II Articles,” and together with each Current Charter, the “Current Charter of such Texas Corporation”);

 

(c)           Amended and Restated Bylaws of each Texas Corporation, each certified as being a complete and correct copy, and in full force and effect on November 30, 2010, by Ingrid J. Keiser, as Secretary of each such Texas Corporation (with respect to each such Texas Corporation, the “Current Bylaws of such Texas Corporation”);

 


 

(d)           Certificate of Limited Partnership of the Texas LP, as certified by the Tx SOS as of a date on or after March 16, 2011(the “LP Certificate of the Texas LP”);

 

(e)           Third Amended and Restated Limited Partnership Agreement of the Texas LP (the “Amended and Restated LP Agreement of the Texas LP”), certified as being a complete and correct copy, and in full force and effect on November 30, 2010, by Ingrid J. Keiser, as Secretary of ClubCorp Gen Par, L.L.C., a Delaware limited liability company and general partner of the Texas LP (the “Texas LP General Partner”);

 

(f)            With respect to each Texas Entity and the Texas LP General Partner, a Certificate of Fact, dated on or after March 14, 2011, from the Tx SOS certifying as of the date thereof, as to the entity status of each such Texas Entity and the Texas LP General Partner, that such entity status is “in existence” in Texas;

 

(g)           With respect to each Texas Entity and the Texas LP General Partner, a Certificate of Account Status, dated on or after March 21, 2011, issued by the Comptroller of Public Accounts of the State of Texas certifying that as of the date thereof each such Texas Entity and the Texas LP General Partner, as applicable, is in good standing in Texas (with respect to each such Texas Entity and the Texas LP General Partner, such Certificate its “Entity Good Standing Certificate”);

 

(h)           Resolutions by the board of directors of each Texas Corporation relating to authorization of the execution and delivery of the Indenture and related matters, certified as being a complete and correct copy, and in full force and effect on November 30, 2010, by Ingrid J. Keiser, as Secretary of each such Texas Corporation; and

 

(i)            Consent of the Texas LP General Partner relating to the execution and delivery by the Texas LP of the Indenture and related matters, certified as being a complete and correct copy, and in full force and effect on November 30, 2010, by Ingrid J. Keiser, as Secretary of the Texas LP General Partner.

 

We have also examined such certificates of public officials, and other documents, records, certificates and instruments, and have considered such questions of law, as we have deemed necessary for the purposes of rendering the opinions expressed herein. As to various questions of fact material to our opinions expressed herein, we have relied upon certificates and written statements of officers and representatives of each of the Texas Entities (or, if applicable, officers and representatives of the Texas LP General Partner). Except as herein stated, we have made no independent investigation as to the organization, existence or affairs of any Texas Entity or the Texas LP General Partner.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We also understand from e-mail correspondence from representatives of the Company, and we have assumed without independent investigation, that as of the date hereof (i) the Amended and Restated Bylaws of each Texas Corporation and the Amended and Restated Limited Partnership Agreement of the Texas LP, as each existed on November 30, 2010, remain in full force and effect and have not been amended, annulled, modified, rescinded or revoked; (ii) the resolutions identified in item (h) above constitute the only resolutions adopted by each Texas Corporation, and the Consent identified in item (i) above constitutes the only Consent adopted by the Texas LP, and each such document remains in full force and effect and has not

 

2


 

been revoked, modified, amended or rescinded; and (iii) the terms and conditions of the Indenture have not been amended, modified or supplemented, directly or indirectly, by any other agreement or understanding of the parties or waiver of any of the material provisions of the Indenture.

 

Based on the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that:

 

1.             Each Texas Corporation is a corporation validly existing and in good standing under the laws of the State of Texas, the Texas LP is a limited partnership validly existing and in good standing under the laws of the State of Texas, and the Texas LP General Partner is duly qualified as a foreign limited liability company to do business in the State of Texas and in good standing under the laws of the State of Texas.

 

2.             Each Texas Entity had, at the time of execution and delivery of the Indenture, and has the requisite corporate or limited partnership, as applicable, power and authority under the laws of the State of Texas to execute and deliver the Indenture and to perform such Texas Entity’s obligations under the Indenture.

 

3.             Each Texas Entity has duly authorized, executed and delivered the Indenture.

 

4.             The execution and delivery by each Texas Entity of the Indenture and the performance by such Texas Entity of such Texas Entity’s obligations under the Indenture do not and will not (a) violate any provision of (i) with respect to each Texas Corporation, the Current Charter of such Texas Corporation or of the Current Bylaws of such Texas Corporation, or (ii) with respect to the Texas LP, the LP Certificate of the Texas LP or of the Amended and Restated LP Agreement of the Texas LP, and (b) do not and will not violate any Texas statute or any rule or regulation issued pursuant to any Texas statute.

 

The opinions expressed herein are subject to the following qualifications and limitations:

 

(1)           The opinions expressed in Paragraph 1 of this opinion letter regarding the good standing of each Texas Entity and the Texas LP General Partner under the laws of the State of Texas are rendered solely on the basis of its Entity Good Standing Certificate.

 

(2)           The opinions set forth herein arc based solely upon the current laws of the State of Texas, and we express no opinion with respect to, and assume no responsibility as to the applicability, or the effect of, the laws of any other jurisdiction, including, without limitation, the laws of the State of New York and the federal laws of the United States of America. In addition, no opinion is expressed herein with respect to (i) any laws, ordinances, codes, rules or regulations of any county, city, municipality or other political subdivision of the State of Texas, or (ii) any statutes, laws, codes, rules and regulations of any governmental authority relating to (A) pollution or protection of the environment, (B) zoning, land use, building or construction, (C) operation of any asset or property, (D) labor, employment, employee rights and benefits, or occupational safety and health, (E) utility regulation or regulation of matters pertaining to the acquisition, transportation, transmission, storage or use of energy sources used in connection therewith or generated thereby, (F) antitrust or competition, (G) taxation or (H) securities regulation, in each case with respect to each of the foregoing, (1) as interpreted, construed or enforced pursuant to any judicial, arbitral or other decision or pronouncement, (2) as enacted, promulgated or issued by, or otherwise existing in effect in, any jurisdiction, including, without limitation, any State of the United States of America (including the State of Texas) and the United States of America, and

 

3


 

(3) including, without limitation, any and all authorizations, permits, consents, applications, licenses, approvals, filings, registrations, publications, exemptions and the like required by any of them.

 

(3)           The opinions set forth herein are rendered as of the date hereof.  We undertake no obligation, and disclaim all obligation, to advise you of any subsequent changes or developments in any law or facts which might affect any matters or opinions set forth herein.

 

This opinion letter is solely for your benefit and use only in connection with the filing of the Registration Statement and may not be relied upon by you for any other purpose, or furnished to, circulated, quoted or relied upon by any other Person for any purpose, without our prior written consent, provided that the foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, for the purpose of giving its legal opinion in connection with the Registration Statement.

 

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the prospectus included in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.

 

 

 

Very truly yours,

 

 

 

 

 

GARDERE WYNNE SEWELL LLP

 

 

 

 

 

 

 

 

By:

/s/ Barry D. Drees

 

 

 

Barry D. Drees, Partner

 

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Schedule I

 

Texas Entities

 

1.             April Sound Management Corp., a Texas corporation

 

2.             Bay Oaks Country Club, Inc., a Texas corporation

 

3              Brookhaven Country Club, Inc., a Texas corporation

 

4.             ClubCorp Golf of Texas, L.P., a Texas limited partnership whose general partner is ClubCorp Gen Par of Texas, L.L.C., a Delaware limited liability company

 

5.             Fair Oaks Club Corp., a Texas corporation

 

6.             Fort Bend Acquisition Corp., a Texas corporation

 

7.             GCC Asset Management, Inc., a Texas corporation

 

8.             Greenspoint Club, Inc., a Texas corporation

 

9.             Hackberry Creek Country Club, Inc., a Texas corporation

 

10.           Hearthstone Country Club, Inc., a Texas corporation

 

11.           Hill Country Golf, Inc., a Texas corporation

 

12.           Hills II of Lakeway, Inc., a Texas corporation

 

13.           Irving Club Acquisition Corp., a Texas corporation

 

14.           Kingwood Country Club, Inc., a Texas corporation

 

15.           Oakmont Management Corp., a Texas corporation

 

16.           Richardson Country Club Corp., a Texas corporation

 

17.           Shady Valley Management Corp., a Texas corporation

 

18.           The Club at Cimarron, Inc., a Texas corporation

 

19.           Timarron Golf Club, Inc., a Texas corporation

 

20.           Walnut Creek Management Corporation, a Texas corporation

 

21.           Wildflower Country Club, Inc., a Texas corporation

 

22.           Dallas Tower Club, Inc., a Texas corporation

 

23.           Houston City Club, Inc., a Texas corporation

 


 

24.           La Cima Club, Inc., a Texas corporation

 

25.           Memorial Stadium Club Management Corp., a Texas corporation

 

26.           The Downtown Club, Inc., a Texas corporation

 

27.           The Plaza Club of San Antonio, Inc., a Texas corporation

 

28.           Tower Club of Dallas, Inc., a Texas corporation

 

29.           West Park Club, Inc., a Texas corporation

 

30.           Westlake City Club, Inc., a Texas corporation

 

31.           Lakeway Clubs, Inc., a Texas corporation

 

32.           Stonebriar Management Corp., a Texas corporation

 

33.           Willow Creek Management, Inc., a Texas corporation

 

34.           Barton Creek Resort & Clubs, Inc., a Texas corporation

 


 EX-5.9 354 a2202241zex-5_9.htm EX-5.9

Exhibit 5.9

 

[Greenberg Traurig Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Re:  Notes Issued by ClubCorp Club Operations, Inc.

 

Ladies and Gentlemen:

 

We have acted as special Arizona counsel to Anthem Golf, LLC, an Arizona limited liability company (“Anthem”), and GRanch Golf Club, Inc., an Arizona corporation (“GRanch”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) to be filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), Anthem and GRanch (each, a “Guarantor” and collectively, “Guarantors”) and the other registrant guarantors named therein with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to (i) the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (collectively, the “Exchange Notes”), and (ii) the issuance by the Guarantors and the other guarantors of the guarantees with respect to the Exchange Notes as described in Article 10 of the Indenture (as defined below) (collectively, the “Guarantees”). The Exchange Notes will be issued under, and the Guarantees will be issued as provided in, the Indenture, dated as of November 30, 2010 (the “Indenture”), executed by the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”). The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

A.            Documents and Matters Examined.

 

For purposes of this opinion, we have examined the following documents:

 

1.             The Indenture (including the Guarantees).

 

2.             The Registration Statement.

 

3.             The Exchange Notes.

 

The Indenture, the Registration Statement and the Exchange Notes are collectively referred to herein as the “Transaction Documents”.

 

We have also reviewed copies of the following documents:

 

1.             The following documents authorizing the execution by Anthem of the Transaction Documents and the performance by Anthem of its obligations thereunder:

 

a.             The Unanimous Written Consent in Lieu of Special Meeting of Directors, dated as of November 9, 2010.

 


 

b.             The Written Consent of Member, dated as of November 9, 2010.

 

2.             The following documents authorizing the execution by GRanch of the Transaction Documents and the performance by Anthem of its obligations thereunder:

 

a.             The Unanimous Written Consent in Lieu of Special Meeting of Directors, dated as of November 9, 2010.

 

b.             The Written Consent of Stockholder, dated as of November 9, 2010.

 

3.             The following organizational documents related to Anthem (collectively, the “Anthem Organizational Documents”):

 

a.             The Articles of Amendment to the Articles of Organization of Anthem Golf, LLC, dated as of November 10, 2010.

 

b.             The Amended and Restated Limited Liability Company Operating Agreement of Anthem Golf, LLC, dated as of November 10, 2010.

 

4.             The following organizational documents related to GRanch (collectively, the “GRanch Organizational Documents”, and, together with the Anthem Organizational Documents, the “Organizational Documents”):

 

a.             The Articles of Amendment to the Articles of Incorporation of GRanch Golf Club, Inc., dated as of November 10, 2010.

 

b.             The Amended and Restated By-Laws of GRanch Golf Club, Inc., dated as of November 10, 2010.

 

5.             A Certificate of Good Standing for Anthem, dated March 16, 2011, issued by the State of Arizona Corporation Commission (the “Anthem Certificate of Good Standing”).

 

6.             A Certificate of Good Standing for GRanch, dated March 16, 2011, issued by the State of Arizona Corporation Commission (the “GRanch Certificate of Good  Standing”).

 

For purposes of the opinions set forth herein, we have assumed that the Transaction Documents have been executed in the forms presented to us, with all blank spaces completed and all exhibits and schedules properly completed and attached thereto.

 

In rendering our opinion we have also examined such certificates of public officials, corporate and limited liability company documents and records and other certificates and instruments as we have deemed necessary for the purposes of the opinion herein expressed. As to the identification of the operative organization documents of the Guarantors and various questions of fact material to our opinion, we have relied upon certificates and written statements of officers, members, or managers, as applicable, of each Guarantor.

 

2


 

All statements made in this opinion “to our knowledge”, “to our actual knowledge” or similar statements with respect to knowledge are made solely to the actual knowledge of the attorneys of this firm who are directly involved with this project and without any independent inquiry or investigation.

 

B.          Assumptions.

 

For purposes of this opinion letter, we have relied, without investigation, upon the following assumptions:

 

1.             The genuineness of signatures not witnessed, the authenticity of documents submitted as originals and the conformity to originals of documents submitted as copies or forms.

 

2.             The competency and legal capacity of all natural persons executing the documents referred to herein.

 

3.             The factual representations made by or on behalf of the Guarantors in each of the Transaction Documents are accurate and complete.

 

4.             There are no facts or events such as fraud, mistake, undue influence or duress in connection with the Exchange Notes that would impair the validity or enforceability of the Transaction Documents.

 

5.             No action has been taken that would cause the dissolution or the termination of the Guarantors.

 

6.             The Guarantors have paid all income taxes, fines, jeopardy or fraud assessments and interest due therefrom and payable to the State of Arizona.

 

7.             All exhibits to be attached to each of the Transaction Documents have been properly attached and all blanks have been appropriately filled in.

 

8.             The Organizational Documents are genuine, complete and accurate and the facts set forth therein are true as of the date thereof and hereof, and the Articles of Amendment to the Articles of Organization of Anthem and the Articles of Amendment to the Articles of Incorporation of GRanch have been duly filed with and accepted by the State of Arizona Corporation Commission.

 

C.            Opinions.

 

Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the assumptions, qualifications and exceptions herein contained, we are of the opinion that:

 

1.             Anthem is a limited liability company validly existing as a limited liability company under the laws of the State of Arizona.

 

2.             GRanch is a corporation, duly organized, validly existing and in good standing as a corporation under the laws of the State of Arizona.

 

3


 

3.             Anthem has the limited liability company power and authority to execute and deliver, and perform its obligations under the Indenture (including the Guarantees). Anthem has duly and validly executed and delivered the Indenture.

 

4.             GRanch has the corporate power and authority to execute and deliver and perform its obligations under the Indenture (including the Guarantees). GRanch has duly and validly executed and delivered the Indenture.

 

5.             The execution and delivery of the Indenture and the performance of each Guarantor’s obligations under the Indenture (including the Guarantees) have been duly authorized by all requisite limited liability company or corporate (as the case may be) action of each Guarantor.

 

6.             The Guarantees have been duly and validly executed, delivered and issued by each Guarantor.

 

7.             The execution and delivery by each Guarantor of the Indenture (including the Guarantees) and the consummation of the transaction contemplated thereby will not: (a) violate any provision of Anthem Organizational Documents or the GRanch Organizational Documents; or (b) violate any Applicable Law of the State of Arizona applicable to the Guarantors.

 

D.            Qualifications.

 

The opinions expressed herein are subject to the following qualifications:

 

1.             Our opinions with respect to valid existence and good standing set forth in Opinion 1 and Opinion 2 above are based solely upon the Anthem Certificate of Good Standing and the GRanch Certificate of Good Standing, respectively.

 

2.             We express no opinion concerning any law other than the law of the State of Arizona.

 

3.             The opinion expressed herein is as of the date hereof and we express no opinion as to the effect future events will have on the opinion.

 

4.             We express no opinion as to the extent, if any, to which the laws of the State of Arizona (or any other state) may be applicable.

 

5.             We express no opinion regarding: (a) tax laws; (b) the negotiability of any promissory notes or other documents; (c) securities laws; (d) environmental laws and regulations; (e) land use and subdivision laws and regulations; (f) health and safety laws and regulations; or (g) statutes of general application to the extent they provide for criminal liability.

 

6.             For purposes of this opinion, “Applicable Law” shall mean those laws, rules and regulations which, in our experience, are normally applicable to transactions of the type contemplated by the Transaction Documents, without our having made any special investigation as to the applicability of any specific law, rule or regulation, and

 

4


 

which are not the subject of a specific opinion herein referring expressly to a particular law or laws.

 

7.             We have been retained to act as special Arizona counsel to the Guarantors in connection with the transactions contemplated by the Transaction Documents. We are not general counsel to the Guarantors or any other party to any of the Transaction Documents and are not generally informed as to their respective business affairs. To the extent our opinions relate to any Arizona law, rule, regulation or requirement of law, such opinions are limited to those Arizona laws, rules and regulations and requirements of law that are of general application and that, in our experience, are likely to have application to transactions of the nature herein referenced (and not to laws, rules and regulations and requirements of law that might be implicated by reason of the specific business activities of any of the Guarantors).

 

The foregoing opinions may be relied upon by you and your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement, but may not be relied upon by any other party. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus in the Registration Statement.

 

Very truly yours,

 

 

 

 

 

/s/ Greenberg Traurig, LLP

 

 

 

 

 

Greenberg Traurig, LLP

 

 

 

5


 EX-5.10 355 a2202241zex-5_10.htm EX-5.10

Exhibit 5.10

 

[Greenberg Traurig Letterhead]

 

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Florida counsel to those entities listed on Schedule A attached hereto and made a part hereof (each, a “Guarantor”, and collectively, the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Company, the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an Indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”). The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement. We have also reviewed the organizational documents of each Guarantor listed on Schedule A (the “Organizational Documents”) and officers certificates with resolutions and other documents attached thereto of each Guarantors each dated November 30, 2010, confirmed to be unchanged by a statement of counsel for the Guarantors dated March 14, 2011 (collectively, the “Resolutions”). As to questions of fact material to our opinions, we have relied upon and assumed the correctness of certificates by public officials and resolutions and statements by representatives of the Guarantors and the factual representations and warranties set forth in the Transaction Documents, all without investigation.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantors) and the Trustee.

 

References in this opinion letter to the “State” means the State of Florida. We express no opinion with respect to any law other than the law of the State.

 


 

All statements made “to our knowledge” are made solely to the current actual knowledge of the attorneys of this firm who are directly involved with this project, and without any inquiry or investigation.

 

Based on the foregoing, and subject to the qualifications, assumptions and exceptions herein contained, we are of the opinion that:

 

1.             Each of the Guarantors (other than HPG, L.C.) is a corporation validly existing and in good standing under the laws of the State.

 

2.             HPG, L.C. is a limited liability company validly existing and in good standing under the laws of the State.

 

3.             Each Guarantor has the corporate or limited liability company, as applicable, power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

4.             Each of the Guarantors has duly authorized, executed, and delivered the Indenture.

 

5.             Each Guarantor’s Guarantee has been duly authorized by each of the Guarantors, and duly executed and issued by each Guarantor’s execution of the Indenture.

 

6.             The execution and delivery by each Guarantor of the Indenture and the consummation of the transaction contemplated thereby does not (a) conflict with or violate any provision of the respective Guarantor’s Organizational Documents, (b) conflict with or violate any State law, rule, or regulation applicable to any Guarantor, or (c) to our knowledge, conflict with any order identified to us by any Guarantor and issued by any court or governmental agency or body and binding on any Guarantor.

 

The opinions set forth in this letter are further subject to the following assumptions, qualifications and limitations:

 

(i)            We have assumed that the executed documents listed in the first paragraph of this letter (the “Transaction Documents”) contain the entire agreement of the parties with respect to the Exchange Notes and that there are no other oral or written agreements between the parties that would modify those Transaction Documents.

 

(ii)           Our opinions in paragraphs 1 and 2 above are based solely on good standing certificates of each of the Guarantors issued by the State on March 15, 2011 and the assumption that nothing has occurred to terminate the good standing certificate since the date thereof.

 

2


 

(iii)          This opinion letter is rendered as of the effective date set forth above, and we express no opinion regarding, nor do we undertake to advise you of, any change in circumstances or events which may occur after that date. This opinion letter expresses our legal opinions based on our professional judgment at this time. It is not, however, to be construed as a guaranty.

 

(iv)          This opinion letter is limited to the matters expressly set forth herein, and no opinion is to be implied or may be inferred beyond the matters expressly so stated. In particular, we have rendered no opinion herein with respect to any: (a) federal or state tax laws or regulations; (b) ordinance or regulation requiring any zoning, planning, building, occupancy or other similar approval or permit or any other ordinance or regulation of any county, municipality, township or other political subdivision of the State; (c) Federal Reserve Board margin regulations; (d) pension and employee benefit laws and regulations; (e) federal or state antitrust or unfair competition laws and regulations; (f) federal or state laws or regulations concerning filing or notice requirements (e.g., Hart-Scott-Rodino and Exon-Florio); (g) compliance with fiduciary duty requirements; (h) federal or state environmental laws or regulations; (i) federal or state securities or blue sky disclosure laws or regulations; (j) federal or state racketeering laws or regulations (e.g., RICO); (k) federal or state health and safety laws or regulations (e.g., OSHA); (l) federal or state labor laws or regulations; (m) federal or state laws, regulations and policies concerning national emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws; (n) other federal or state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (p) state usury laws; or (q) local laws, regulations or ordinances. We have further assumed the compliance of the Transaction Documents and with all federal and state securities laws.

 

(v)           We have been retained to act as special Florida counsel to the Guarantors in connection with the Loan. We are not general counsel to the Guarantors and are not generally informed as to their business affairs. To the extent our opinions relate to any State law, rule, regulation, or requirement of law, such opinions are limited to those State laws, rules, regulations, and requirements of law that are of general application and that, in our experience, are likely to have application to transactions of the nature herein referenced (and not to laws, rules, regulations and requirements of law that might be implicated by specific business activities of the Guarantors).

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very Truly Yours,

 

 

 

/s/ Greenberg Traurig, P.A.

 

3


 

SCHEDULE A

 

Guarantors

 

Guarantors

 

Organizational Documents

ClubCorp Graphics, Inc., a Florida corporation

 

Articles of Incorporation, as amended
Bylaws

 

 

 

HPG, L.C., a Florida limited liability company

 

Articles of Organization, as amended
Amended and Restated Operating Agreement for HPG, L.C.

 

 

 

Monarch EP Management Corp., a Florida corporation

 

Articles of Incorporation, as amended
By-Laws

 

 

 

Centre Club, Inc., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

Citrus Club, Inc., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

Tower Club, Inc., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

University Club Management Co., Inc., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

University Club, Inc., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

Countryside Country Club, Inc., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

DeBary Management Corp., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

Haile Plantation Management Corp., a Florida corporation

 

Amended and Restated Articles of Incorporation

 

A-1


 

Guarantors

 

Organizational Documents

 

 

Amended and Restated By-Laws

 

 

 

Hunter’s Green Acquisition Corp., a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

Management Company for Eagle Ridge and The Preserve, a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

Queens Harbour Corporation, a Florida corporation

 

Amended and Restated Articles of Incorporation
Amended and Restated By-Laws

 

 

 

Tampa Palms Club, Inc., a Florida corporation

 

Amended and Restated Articles of Incorporation
Bylaws

 

A-2


 EX-5.11 356 a2202241zex-5_11.htm EX-5.11

Exhibit 5.11

 

[Greenberg Traurig Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Georgia counsel to those entities listed on Schedule A attached hereto and made a part hereof (each, a “Guarantor”, and collectively, the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Company, the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an Indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”). The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Indenture and certain provisions of the Registration Statement relating to indemnities by the Guarantors, each of which was provided to us by counsel to the Company. We have also reviewed the organizational documents of each Guarantor listed on Schedule A (the “Organizational Documents”) and the resolutions and consents listed on Schedule A (the “Resolutions”). As to questions of fact material to our opinions, we have relied upon and assumed the correctness of certificates by public officials and resolutions and statements by representatives of the Guarantors and the factual representations and warranties set forth in the Transaction Documents, all without investigation. We have also assumed, at your request, the completemess and accuracy of the Organizational Documents and that none of them and none of the authorizing resolutions and consents of the Guarantors have been modifed, revoked, withdrawn or otherwise legally impacted.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantors) and the Trustee.

 


 

References in this opinion letter to the “State” means the State of Georgia. We express no opinion with respect to any law other than the law of the State.

 

All statements made “to our knowledge” are made solely to the current actual knowledge of the attorneys of this firm who are directly involved with this project, and without any inquiry or investigation.

 

Based on the foregoing, and subject to the qualifications, assumptions and exceptions herein contained, we are of the opinion that:

 

1.             Each of the Guarantors other than ClubCorp Golf of Georgia, L.P. is a corporation validly existing and in good standing under the laws of the State. ClubCorp Golf of Georgia, L.P. is a limited partnership validly existing and in good standing under the laws of the State.

 

2.             Each Guarantor has the corporate or limited partnership, as applicable, power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

3.             Each of the Guarantors has duly authorized, executed, and delivered the Indenture.

 

4.             Each Guarantor’s Guarantee has been duly authorized by each of the Guarantors, and duly executed and issued by virtue of each Guarantor’s execution of the Indenture.

 

5.             The execution and delivery by each Guarantor of the Indenture and the consummation of the transaction contemplated thereby does not (a) conflict with or violate any provision of the respective Guarantor’s Organizational Documents, (b) conflict with or violate any State law, rule, or regulation applicable to any Guarantor, or (c) to our knowledge, conflict with any order identified to us by any Guarantor and issued by any court or governmental agency or body and binding on any Guarantor.

 

The opinions set forth in this letter are further subject to the following assumptions, qualifications and limitations:

 

We have assumed that the executed documents listed in the first paragraph of this letter (the “Transaction Documents”) contain the entire agreement of the parties with respect to the Exchange Notes and that there are no other oral or written agreements between the parties that would modify those Transaction Documents.

 

Our opinions in paragraphs 1 and 2 above are based solely on good standing certificates of the Guarantors issued by the State and attached hereto and the assumption that nothing has occurred to terminate the good standing certificate since the date thereof.

 

This opinion letter is rendered as of the effective date set forth above, and we express no opinion regarding, nor do we undertake to advise you of, any change in circumstances or events which may occur after that date. This opinion letter expresses our legal opinions based on our professional judgment at this time. It is not, however, to be construed as a guaranty.

 

2


 

This opinion letter is limited to the matters expressly set forth herein, and no opinion is to be implied or may be inferred beyond the matters expressly so stated. In particular, we have rendered no opinion herein with respect to any: (a) federal or state tax laws or regulations; (b) ordinance or regulation requiring any zoning, planning, building, occupancy or other similar approval or permit or any other ordinance or regulation of any county, municipality, township or other political subdivision of the State; (c) Federal Reserve Board margin regulations; (d) pension and employee benefit laws and regulations; (e) federal or state antitrust or unfair competition laws and regulations; (f) federal or state laws or regulations concerning filing or notice requirements (e.g., Hart-Scott-Rodino and Exon-Florio); (g) compliance with fiduciary duty requirements; (h) federal or state environmental laws or regulations; (i) federal or state securities or blue sky disclosure laws or regulations; (j) federal or state racketeering laws or regulations (e.g., RICO); (k) federal or state health and safety laws or regulations (e.g., OSHA); (l) federal or state labor laws or regulations; (m) federal or state laws, regulations and policies concerning national emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws; (n) other federal or state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (p) state usury laws; or (q) local laws, regulations or ordinances. We have further assumed the compliance of the Transaction Documents and with all federal and state securities laws.

 

We have been retained to act as special Georgia counsel to the Guarantors in connection with the Loan. We are not general counsel to the Guarantors and are not generally informed as to their business affairs. To the extent our opinions relate to any State law, rule, regulation, or requirement of law, such opinions are limited to those State laws, rules, regulations, and requirements of law that are of general application and that, in our experience, are likely to have application to transactions of the nature herein referenced (and not to laws, rules, regulations and requirements of law that might be implicated by specific business activities of the Guarantors).

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement, but not otherwise.

 

 

Very Truly Yours,

 

 

 

/s/ Greenberg Traurig, LLP

 

 

 

GREENBERG TRAURIG, LLP

 

3


 

SCHEDULE A

 

LIST OF GUARANTORS AND CORRESPONDING ORGANIZATIONAL DOCUMENTS, RESOLUTIONS, AND CERTIFICATES OF EXISTENCE REVIEWED BY GREENBERG TRAURING, LLP FOR GEORIA ENTITITIES

 

Guarantors

 

Documents

ClubCorp Golf of Georgia, L.P.

 

Organizational Document:

 

·      Certificate of Limited Partnership dated March 8, 1999

 

·      Third Amended and Restated Limited Partnership Agreement, dated as of November 10, 2010

 

Authorizing Resolution:

 

·      Written Consent of General Partner, dated as of November 9, 2010

 

Certificate of Existence of the Georgia Secretary of State:

 

·      Issued on March 15, 2011

 

 

 

Northwood Management Corp.

 

Organizational Documents:

 

·      Amended and Restated Articles of Incorporation, dated as of November 15, 2010

 

·      Amended and Restated By-laws

 

Authorizing Resolutions:

 

·      Omnibus Consent In Lieu of Special Meetings of Directors, dated as of November 9, 2010

 

·      Consent In Lieu of Special Meeting of Shareholders, dated as of November 9, 2010

 

Certificate of Existence of the Georgia Secretary of State:

 

·      Issued on March 15, 2011

 

Guarantors

 

Documents

191 Club, Inc.

 

Organizational Documents:

 

·      Amended and Restated Articles of Incorporation, dated as of November 15, 2010

 

·      Amended and Restated By-laws

 

Authorizing Resolutions:

 

·      Omnibus Consent In Lieu of Special Meetings of Directors, dated

 


 

 

 

as of November 9, 2010

 

·      Consent In Lieu of Special Meeting of Shareholders, dated as of November 9, 2010

 

Certificate of Existence of the Georgia Secretary of State:

 

·      Issued on March 15, 2011

 

 

 

First City Club Management, Inc.

 

Organizational Documents:

 

·      Amended and Restated Articles of Incorporation, dated as of November 15, 2010

 

·      Amended and Restated By-laws

 

Authorizing Resolutions:

 

·      Omnibus Consent In Lieu of Special Meetings of Directors, dated as of November 9, 2010

 

·      Consent In Lieu of Special Meeting of Shareholders, dated as of November 9, 2010

 

Certificate of Existence of the Georgia Secretary of State:

 

·      Issued on March 15, 2011

 

 

 

GP Bear’s Best Atlanta, Inc.

 

Organizational Documents:

 

·      Amended and Restated Articles of Incorporation, dated as of November 15, 2010

 

·      Amended and Restated By-laws

 

Authorizing Resolutions:

 

·      Omnibus Consent In Lieu of Special Meetings of Directors, dated as of November 9, 2010

 

·      Consent In Lieu of Special Meeting of Shareholders, dated as of November 9, 2010

 

Certificate of Existence of the Georgia Secretary of State:

 

·      Issued on March 15, 2011

 

 

 

The Buckhead Club, Inc.

 

Organizational Documents:

 

·      Amended and Restated Articles of Incorporation, dated as of November 15, 2010

 

·      Amended and Restated By-laws

 

Authorizing Resolutions:

 


 

 

 

·      Omnibus Consent In Lieu of Special Meetings of Directors, dated as of November 9, 2010

 

·      Consent In Lieu of Special Meeting of Shareholders, dated as of November 9, 2010

 

Certificate of Existence of the Georgia Secretary of State:

 

·      Issued on March 15, 2011

 


 EX-5.12 357 a2202241zex-5_12.htm EX-5.12

Exhibit 5.12

 

[Greenberg Traurig Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Massachusetts counsel to those entities listed on Schedule A attached hereto and made a part hereof (each, a “Guarantor”, and collectively, the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Company, the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes.  The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an Indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”).  The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement.  We have also reviewed the organizational documents of each Guarantor listed on Schedule A (the “Organizational Documents”) and the resolutions and consents of each Guarantor as we have deemed appropriate.  As to questions of fact material to our opinions, we have relied upon and assumed the correctness of certificates by public officials and resolutions and statements by representatives of the Guarantors and the factual representations and warranties set forth in the Transaction Documents, all without investigation.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.  We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantors) and the Trustee.

 


 

References in this opinion letter to the “State” means the Commonwealth of Massachusetts.  We express no opinion with respect to any law other than the law of the State.

 

All statements made “to our knowledge” are made solely to the current actual knowledge of the attorneys of this firm who are directly involved with this project, and without any inquiry or investigation.

 

Based on the foregoing, and subject to the qualifications, assumptions and exceptions herein contained, we are of the opinion that:

 

1.             Each of the Guarantors is a corporation validly existing and in good standing under the laws of the State.

 

2.             Each Guarantor has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

3.             Each of the Guarantors has duly authorized, executed, and delivered the Indenture.

 

4.             Each Guarantor’s Guarantee has been duly authorized by each of the Guarantors, and duly executed and issued by each Guarantor’s execution of the Indenture.

 

5.             The execution and delivery by each Guarantor of the Indenture and the consummation of the transaction contemplated thereby does not (a) conflict with or violate any provision of the respective Guarantor’s Organizational Documents, (b) conflict with or violate any State law, rule, or regulation applicable to any Guarantor, or (c) to our knowledge, conflict with any order identified to us by any Guarantor and issued by any court or governmental agency or body and binding on any Guarantor.

 

The opinions set forth in this letter are further subject to the following assumptions, qualifications and limitations:

 

(i)            We have assumed that the executed documents listed in the first paragraph of this letter (the “Transaction Documents”) contain the entire agreement of the parties with respect to the Exchange Notes and that there are no other oral or written agreements between the parties that would modify those Transaction Documents.

 

(ii)           Our opinion in paragraph 1 above is based solely on good standing certificates of the Guarantors issued by the State and attached hereto and the assumption that nothing has occurred to terminate the good standing certificate since the date thereof.

 

2


 

(iii)          This opinion letter is rendered as of the effective date set forth above, and we express no opinion regarding, nor do we undertake to advise you of, any change in circumstances or events which may occur after that date.  This opinion letter expresses our legal opinions based on our professional judgment at this time.  It is not, however, to be construed as a guaranty.

 

(iv)          This opinion letter is limited to the matters expressly set forth herein, and no opinion is to be implied or may be inferred beyond the matters expressly so stated.  In particular, we have rendered no opinion herein with respect to any: (a) federal or state tax laws or regulations; (b) ordinance or regulation requiring any zoning, planning, building, occupancy or other similar approval or permit or any other ordinance or regulation of any county, municipality, township or other political subdivision of the State; (c) Federal Reserve Board margin regulations; (d) pension and employee benefit laws and regulations; (e) federal or state antitrust or unfair competition laws and regulations; (f) federal or state laws or regulations concerning filing or notice requirements (e.g., Hart-Scott-Rodino and Exon-Florio); (g) compliance with fiduciary duty requirements; (h) federal or state environmental laws or regulations; (i) federal or state securities or blue sky disclosure laws or regulations; (j) federal or state racketeering laws or regulations (e.g., RICO); (k) federal or state health and safety laws or regulations (e.g., OSHA); (l) federal or state labor laws or regulations; (m) federal or state laws, regulations and policies concerning national emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws; (n) other federal or state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (p) state usury laws; or (q) local laws, regulations or ordinances.  We have further assumed the compliance of the Transaction Documents and with all federal and state securities laws.

 

(v)           We have been retained to act as special Massachusetts counsel to the Guarantors in connection with the Loan.  We are not general counsel to the Guarantors and are not generally informed as to their business affairs.  To the extent our opinions relate to any State law, rule, regulation, or requirement of law, such opinions are limited to those State laws, rules, regulations, and requirements of law that are of general application and that, in our experience, are likely to have application to transactions of the nature herein referenced (and not to laws, rules, regulations and requirements of law that might be implicated by specific business activities of the Guarantors).

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

 

Very Truly Yours,

 

 

 

 

 

/s/ GREENBERG TRAURIG, LLP

 

3


 

SCHEDULE A

 

Guarantors

 

Guarantor

 

Organizational Documents

 

 

 

New England Country Club Management, Inc.

 

Amended and Restated Articles of Organization

Amended and Restated By-laws

 

 

 

Club at Boston College, Inc.

 

Amended and Restated Articles of Organization

Amended and Restated By-laws

 

A-1


 EX-5.13 358 a2202241zex-5_13.htm EX-5.13

Exhibit 5.13

 

[Greenberg Traurig Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as Pennsylvania counsel to those entities listed on Schedule A attached hereto and made a part hereof (each, a “Guarantor” and collectively, the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Company, the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”). The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement. We have also reviewed the organizational documents of each of the Guarantors listed on Schedule A (the “Organizational Documents”) which were certified as true, complete and correct copies by the Secretary of each Guarantor by Officer’s Certificate dated November 30, 2010. As to questions of fact material to this opinion, we have relied upon and assumed the correctness of certificates or comparable documents of public officials and resolutions and statements made by representatives of the Guarantors and the factual representations and warranties set forth in the Transaction Documents (as hereinafter defined), all without investigation.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein and the Trustee.

 

References in the opinion to the “State” shall mean the Commonwealth of Pennsylvania. We express no opinion with respect to the laws of any state other than the Laws of the State.

 


 

All statements made ‘‘to our knowledge” are made solely to current actual knowledge of the attorneys of this firm who are directly involved with this project and without any inquiry or investigation.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.               Each of the Guarantors is validly existing and subsisting under the laws of the State.

 

2.               Each of the Guarantors has the requisite corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

3.               Each of the Guarantors has duly authorized, executed and delivered the Indenture.

 

4.               Each Guarantor’s Guarantee has been duly authorized by such Guarantor, and duly executed and issued by such Guarantor’s execution of the Indenture.

 

5.               The execution and delivery by each Guarantor of the Indenture, and the consummation of the transaction contemplated thereby (a) do not conflict with or violate any provision of the respective Guarantor’s Organizational Documents, (b) do not conflict with or violate any State statute or any rule or regulation applicable to any Guarantor, and (c) do not, to our knowledge, conflict with any order identified to us by any Guarantor and issued by any court or governmental agency or body and binding on any Guarantor.

 

The opinions set forth in this letter are further subject to the following assumptions, qualifications and limitations:

 

(i)              We have assumed that the executed documents listed in the first paragraph of this letter (the “Transaction Documents”) contain the entire agreement of the parties with respect to the Exchange Notes and that there are no other oral or written agreements between the parties that would modify those Transaction Documents.

 

(ii)             Our opinion in paragraph I above is based on subsistence certificates of the Guarantors issued by the State on March 16, 2011, and the assumption that nothing has occurred to terminate such subsistence since the date thereof.

 

(iii)            This opinion letter is rendered as of the effective date set forth above, and we express no opinion regarding, nor do we undertake to advise you of, any change in circumstances or events which may occur after that date. This opinion letter expresses our legal opinions based on our professional judgment at this time. It is not, however, to be construed as a guaranty.

 

(iv)            This opinion letter is limited to the matters expressly set forth herein, and no opinion is to be implied or may be inferred beyond the matters expressly so stated. In particular, we have rendered no opinion herein with respect to any: (a) federal or state tax laws or regulations; (b) ordinance or regulation requiring any zoning, planning, building, occupancy or other similar approval or permit or any other ordinance or regulation of any county, municipality, township or other political subdivision of the State; (c) Federal Reserve Board margin regulations; (d) pension and employee benefit laws and regulations; (e) federal or state antitrust or unfair competition laws and regulations; (f) federal or state laws or regulations concerning filing or notice requirements (e.g.,

 


 

Hart-Scott-Rodino and Exon-Florio); (g) compliance with fiduciary duty requirements; (h) federal or state environmental laws or regulations; (i) federal or state securities or blue sky disclosure laws or regulations; (j) federal or state racketeering laws or regulations (e.g., RICO); (k) federal or state health and safety laws or regulations (e.g., OSHA); (I) federal or state labor laws or regulations; (m) federal or state laws, regulations and policies concerning national emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws; (n) other federal or state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (p) state usury laws; or (q) local laws, regulations or ordinances. We have further assumed the compliance of the Transaction Documents with all federal and state securities laws.

 

(v)             We have been retained to act as Pennsylvania counsel to the Guarantors in connection with the Loan. We are not general counsel to the Guarantors and are not generally informed as to their business affairs. To the extent our opinions relate to any State law, rule, regulation, or requirement of law, such opinions are limited to those State laws, rules, regulations, and requirements of law that are of general application and that, in our experience, are likely to have application to transactions of the nature herein referenced (and not to laws, rules, regulations and requirements of law that might be implicated by specific business activities of the Guarantors).

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

 

Very truly yours,

 

 

 

 

 

/s/ Greenberg Traurig, LLP

 

 

 

 

 

Greenberg Traurig, LLP

 


 

SCHEDULE A

 

 

Guarantors

 

Organizational Documents

 

 

 

 

 

 

 

Pyramid Club Management, Inc.

 

·      Amended and Restated Articles of Incorporation

·      Amended and Restated Bylaws

·      Resolutions of the equity owner and board of directors

 

 

 

 

 

 

 

Rivers Club, Inc.

 

·      Amended and Restated Articles of Incorporation

·      Amended and Restated Bylaws

·      Resolutions of the equity owner and board of directors

 

 

 

 

 

 

 

Diamond Run Club, Inc.

 

·      Amended and Restated Articles of Incorporation

·      Amended and Restated Bylaws

·      Resolutions of the equity owner and board of directors

 

 

 

 

 

 

 

Treesdale Country Club, Inc.

 

·      Amended and Restated Articles of Incorporation

·      Amended and Restated Bylaws

·      Resolutions of the equity owner and board of directors

 

 


 EX-5.14 359 a2202241zex-5_14.htm EX-5.14

Exhibit 5.14

 

[Greenberg Traurig Letterhead]

 

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Virginia counsel to those entities listed on Schedule A attached hereto and made a part hereof (each, a “Guarantor”, and collectively, the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) being filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes.  The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an Indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”).  The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement.  We have also reviewed the organizational documents of each Guarantor listed on Schedule A (the “Organizational Documents”) and certain resolutions and consents provided to us by the Guarantors.  As to questions of fact material to our opinions, we have relied upon and assumed the correctness of certificates by public officials and resolutions and statements by representatives of the Guarantors and the factual representations and warranties set forth in the Transaction Documents, all without investigation.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.  We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantors) and the Trustee.

 


 

References in this opinion letter to the “State” means the Commonwealth of Virginia.  We express no opinion with respect to any law other than the law of the State.

 

All statements made “to our knowledge” are made solely to the current actual knowledge of the attorneys of this firm who are directly involved with this project, and without any inquiry or investigation.

 

Based on the foregoing, and subject to the qualifications, assumptions and exceptions herein contained, we are of the opinion that:

 

1.                                       Each of the Guarantors is a corporation validly existing and in good standing under the laws of the State.

 

2.                                       Each Guarantor has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

3.                                       Each of the Guarantors has duly authorized, executed and delivered the Indenture.

 

4.                                       Each Guarantor’s Guarantee has been duly authorized by such Guarantor, and duly executed and issued by such Guarantor’s execution of the Indenture.

 

5.                                       The execution and delivery by each Guarantor of the Indenture and the consummation of the transaction contemplated thereby does not (a) conflict with or violate any provision of such Guarantor’s Organizational Documents, (b) conflict with or violate any State law, rule, or regulation applicable to such Guarantor, or (c) to our knowledge, conflict with any order identified to us by such Guarantor and issued by any court or governmental agency or body and binding on such Guarantor.

 

The opinions set forth in this letter are further subject to the following assumptions, qualifications and limitations:

 

(i)                                     We have assumed that the executed documents listed in the first paragraph of this letter (the “Transaction Documents”) contain the entire agreement of the parties with respect to the Exchange Notes and that there are no other oral or written agreements between the parties that would modify those Transaction Documents.

 

(ii)                                  Our opinions in paragraph 1 above are based solely on good standing certificates of the Guarantors issued by the State and attached hereto and the assumption that nothing has occurred to terminate the good standing certificate since the date thereof.

 

(iii)                               This opinion letter is rendered as of the effective date set forth above, and we express no opinion regarding, nor do we undertake to advise you of, any change in circumstances or events which may occur after that date.  This opinion letter expresses our

 

2


 

legal opinions based on our professional judgment at this time.  It is not, however, to be construed as a guaranty.

 

(iv)                              This opinion letter is limited to the matters expressly set forth herein, and no opinion is to be implied or may be inferred beyond the matters expressly so stated.  In particular, we have rendered no opinion herein with respect to any: (a) federal or state tax laws or regulations; (b) ordinance or regulation requiring any zoning, planning, building, occupancy or other similar approval or permit or any other ordinance or regulation of any county, municipality, township or other political subdivision of the State; (c) Federal Reserve Board margin regulations; (d) pension and employee benefit laws and regulations; (e) federal or state antitrust or unfair competition laws and regulations; (f) federal or state laws or regulations concerning filing or notice requirements (e.g., Hart-Scott-Rodino and Exon-Florio); (g) compliance with fiduciary duty requirements; (h) federal or state environmental laws or regulations; (i) federal or state securities or blue sky disclosure laws or regulations; (j) federal or state racketeering laws or regulations (e.g., RICO); (k) federal or state health and safety laws or regulations (e.g., OSHA); (l) federal or state labor laws or regulations; (m) federal or state laws, regulations and policies concerning national emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws; (n) other federal or state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (p) state usury laws; or (q) local laws, regulations or ordinances.  We have further assumed the compliance of the Transaction Documents and with all federal and state securities laws.

 

(v)                                 We have been retained to act as special Virginia counsel to the Guarantors in connection with the Loan.  We are not general counsel to the Guarantors and are not generally informed as to their business affairs.  To the extent our opinions relate to any State law, rule, regulation, or requirement of law, such opinions are limited to those State laws, rules, regulations, and requirements of law that are of general application and that, in our experience, are likely to have application to transactions of the nature herein referenced (and not to laws, rules, regulations and requirements of law that might be implicated by specific business activities of the Guarantors).

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very Truly Yours,

 

 

 

/s/Greenberg Traurig, LLP

 

 

 

Greenberg Traurig, LLP

 

3


 

SCHEDULE A

 

Guarantors

 

Guarantors

 

Organizational Documents

GREENBRIER COUNTRY CLUB, INC., a Virginia corporation

 

Amended and Restated Articles of Incorporation accepted for filing with the State Corporation Commission of Virginia on November 16, 2010

Amended and Restated By-laws

TOWER CITY CLUB OF VIRGINIA, INC., a Virginia corporation

 

Amended and Restated Articles of Incorporation accepted for filing with the State Corporation Commission of Virginia on November 16, 2010

Amended and Restated Bylaws

TOWN POINT CLUB, INC., a Virginia corporation

 

Amended and Restated Articles of Incorporation accepted for filing with the State Corporation Commission of Virginia on November 16, 2010

Amended and Restated By-laws

RIVER CREEK COUNTRY CLUB, INC., a Virginia corporation

 

Amended and Restated Articles of Incorporation accepted for filing with the State Corporation Commission of Virginia on November 16, 2010

Amended and Restated By-laws

STONEHENGE CLUB, INC., a Virginia corporation

 

Amended and Restated Articles of Incorporation accepted for filing with the State Corporation Commission of Virginia on November 16, 2010

Amended and Restated By-laws

OPERATIONS COMPANY FOR HOMESTEAD, INC., a Virginia corporation

 

Amended and Restated Articles of Incorporation accepted for filing with the State Corporation Commission of Virginia on November 16, 2010

Amended and Restated By-laws

 


 EX-5.15 360 a2202241zex-5_15.htm EX-5.15

Exhibit 5.15

 

[GreenbergTraurig Letterhead]

 

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas  75234

 

Ladies and Gentlemen:

 

We have acted as special District of Columbia counsel to City Club of Washington, Inc., a District of Columbia corporation (the “Guarantor”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) being filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantor and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantor and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes.  The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an Indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantor) and Wilmington Trust FSB, as trustee (the “Trustee”).  The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement.  We have also reviewed the organizational documents of the Guarantor listed on Schedule A (the “Organizational Documents”) and certain resolutions and consents provided to us by the Guarantor.  As to questions of fact material to our opinions, we have relied upon and assumed the correctness of certificates by public officials and resolutions and statements by representatives of the Guarantor and the factual representations and warranties set forth in the Transaction Documents, all without investigation.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.  We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantor) and the Trustee.

 


 

References in this opinion letter to the “State” means the District of Columbia.  We express no opinion with respect to any law other than the law of the State.

 

All statements made “to our knowledge” are made solely to the current actual knowledge of the attorneys of this firm who are directly involved with this project, and without any inquiry or investigation.

 

Based on the foregoing, and subject to the qualifications, assumptions and exceptions herein contained, we are of the opinion that:

 

1.                                       The Guarantor is a corporation validly existing and in good standing under the laws of the State.

 

2.                                       The Guarantor has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

3.                                       The Guarantor has duly authorized, executed and delivered the Indenture.

 

4.                                       The Guarantor’s Guarantee has been duly authorized by the Guarantor, and duly executed and issued by the Guarantor’s execution of the Indenture.

 

5.                                       The execution and delivery by the Guarantor of the Indenture and the consummation of the transaction contemplated thereby does not (a) conflict with or violate any provision of the Guarantor’s Organizational Documents, (b) conflict with or violate any State law, rule, or regulation applicable to the Guarantor, or (c) to our knowledge, conflict with any order identified to us by the Guarantor and issued by any court or governmental agency or body and binding on the Guarantor.

 

The opinions set forth in this letter are further subject to the following assumptions, qualifications and limitations:

 

(i)                                     We have assumed that the executed documents listed in the first paragraph of this letter (the “Transaction Documents”) contain the entire agreement of the parties with respect to the Exchange Notes and that there are no other oral or written agreements between the parties that would modify those Transaction Documents.

 

(ii)                                  Our opinions in paragraph 1 above are based solely on a good standing certificate of the Guarantor issued by the State and attached hereto and the assumption that nothing has occurred to terminate the good standing certificate since the date thereof.

 

(iii)                               This opinion letter is rendered as of the effective date set forth above, and we express no opinion regarding, nor do we undertake to advise you of, any change in circumstances or events which may occur after that date.  This opinion letter expresses our

 

2


 

legal opinions based on our professional judgment at this time.  It is not, however, to be construed as a guaranty.

 

(iv)                              This opinion letter is limited to the matters expressly set forth herein, and no opinion is to be implied or may be inferred beyond the matters expressly so stated.  In particular, we have rendered no opinion herein with respect to any: (a) federal or state tax laws or regulations; (b) ordinance or regulation requiring any zoning, planning, building, occupancy or other similar approval or permit or any other ordinance or regulation of any county, municipality, township or other political subdivision of the State; (c) Federal Reserve Board margin regulations; (d) pension and employee benefit laws and regulations; (e) federal or state antitrust or unfair competition laws and regulations; (f) federal or state laws or regulations concerning filing or notice requirements (e.g., Hart-Scott-Rodino and Exon-Florio); (g) compliance with fiduciary duty requirements; (h) federal or state environmental laws or regulations; (i) federal or state securities or blue sky disclosure laws or regulations; (j) federal or state racketeering laws or regulations (e.g., RICO); (k) federal or state health and safety laws or regulations (e.g., OSHA); (l) federal or state labor laws or regulations; (m) federal or state laws, regulations and policies concerning national emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws; (n) other federal or state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (p) state usury laws; or (q) local laws, regulations or ordinances.  We have further assumed the compliance of the Transaction Documents and with all federal and state securities laws.

 

(v)                                 We have been retained to act as special District of Columbia counsel to the Guarantor in connection with the Loan.  We are not general counsel to the Guarantor and are not generally informed as to its business affairs.  To the extent our opinions relate to any State law, rule, regulation, or requirement of law, such opinions are limited to those State laws, rules, regulations, and requirements of law that are of general application and that, in our experience, are likely to have application to transactions of the nature herein referenced (and not to laws, rules, regulations and requirements of law that might be implicated by specific business activities of the Guarantor).

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very Truly Yours,

 

 

 

/s/Greenberg Traurig, LLP

 

 

 

Greenberg Traurig, LLP

 

3


 

SCHEDULE A

 

Guarantors

 

Guarantor

 

Organizational Documents

City Club of Washington, Inc., a District of Columbia corporation

 

Amended and Restated Articles of Incorporation, accepted for filing with the District of Columbia on November 12, 2010

 

Amended and Restated Bylaws

 


 EX-5.16 361 a2202241zex-5_16.htm EX-5.16

Exhibit 5.16

 

[Harris Shelton Hanover Walsh, PLLC Letterhead]

 

East Office

 

 

 

Downtown Memphis Office

Suite 300

 

March 28, 2011

 

Suite 2700

999 South Shady Grove Road

 

 

 

One Commerce Square

Memphis, Tennessee 38120-4126

 

 

 

Memphis, Tennessee 38103-2555

 

 

 

 

 

Telephone 901-682-1455

 

 

 

Oxford, Mississippi Office

Telecopier 901-435-0301

 

 

 

829 North Lamar Blvd., Suite 2

ttweel@harrisshelton.com

 

 

 

Oxford, Mississippi 38655

www.harrisshelton.com

 

 

 

 

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Mississippi counsel to The University Club, Inc., a Mississippi corporation (“Guarantor”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantor and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Issuer of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Company, the Guarantor and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantor) and Wilmington Trust FSB, as trustee (the “Trustee”). We understand that the Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture we understand has been filed with the Commission as an exhibit to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents, and other instruments and have made such other investigations as we have deemed relevant or necessary in connection with the opinions hereinafter set forth, including and examination of (a) the Officer’s Certificate executed by Ingrid J. Keiser, as Secretary, and Curt D. McClellan, as Treasurer, dated November, 2010, for the Guarantor (the “Officer’s Certificate”), and (b) the following attachments to the Officer’s Certificate: (i) Organizational Document (as defined in the Officer’s Certificate) of the Guarantor, (ii) Bylaws (as defined in the Officer’s Certificate) for the Guarantor, (iii) Resolutions (as defined in the Officer’s Certificate) of the Guarantor, and (iv) certificate of good standing for the Guarantor (“Certificate of Good Standing”). As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of

 


 

officers and representatives of the Company and the Guarantor including the Officer’s Certificate and Certificate of Good Standing. For purposes of expressing the opinions in Paragraph 1 below, we have also relied upon the Certificate of Good Standing attached to the Officer’s Certificate.

 

In rendering the opinions set forth below, we have also made the assumptions referred to herein. We have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have assumed that the Exchange Notes and the Indenture are the Issuer’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantor) and the Trustee. We have assumed that the Organizational Document, Bylaws and Resolutions of the Guarantor remain in full force and effect and have not been revoked, amended, modified or rescinded, and that the Resolutions constitute the only resolutions adopted by the Guarantor’s equity owner or Board of Directors (as defined in the Officer’s Certificate) relating to the subject matter hereof. We have also assumed that the remaining certifications made in the Officer’s Certificate remain true and correct on the date hereof.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.             The Guarantor is duly formed, validly existing and in good standing under the laws of the State of Mississippi, and has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2.             The Indenture has been duly authorized by all requisite corporate action on the part of the Guarantor, and the Guarantor has duly executed and delivered the Indenture.

 

3.             The Guarantee by the Guarantor has been duly authorized by all requisite corporate action on the part of the Guarantor and issued by the Guarantor.

 

4.             The execution and delivery by the Guarantor of the Indenture and the performance of its obligations thereunder and the consummation of the transactions contemplated thereby (a) do not and will not violate its Organizational Document or Bylaws, and (b) do not and will not violate any Mississippi statute or any rule or regulation issued pursuant to any Mississippi statute or any order identified to us by the Guarantor and issued by any court or governmental agency or body and binding on the Guarantor (it being understood that (i) no opinion is being rendered regarding any Mississippi securities or blue sky statutes, rules or regulations, (ii) no such order has been identified to us, and (iii) we have not undertaken any independent investigation to determine the existence or absence of any of such facts).

 

5.             When the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon consummation of the exchange described in the Registration Statement, the Guarantee of the Guarantor will constitute

 

2


 

the valid and legally binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms.

 

Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing. We do not express any opinion concerning any law other than the laws of the State of Mississippi. We also express no opinion herein as to any (a) securities or blue sky disclosure laws or regulations; (b) antitrust or unfair competition laws or regulations; (c) tax or racketeering laws or regulations; or (d) local laws, regulations or ordinances.

 

In addition to the limitations, qualifications and assumptions set forth above, the foregoing opinions are subject to the following additional qualifications and assumptions:

 

(a)                                  Our opinions are limited to the review of such instruments or agreements specifically listed herein, and without any independent inquiry with respect to any proposed laws or proposed regulations or the existence or contents of any agreements or instruments to which the Guarantor is a party or to which the Guarantor is subject which we have not examined.

 

(b)                                 The opinions are limited to the matters set forth herein and no opinion may be inferred or implied beyond those explicitly stated herein.

 

(c)                                  We assume no obligation to supplement or update the opinions expressed herein if any applicable laws of the State of Mississippi change after the date hereof or if we become aware after the date hereof of any facts that might change the opinions expressed herein.

 

The foregoing opinions represent our reasoned judgment as to certain matters of law, based upon the foregoing facts presented, assumptions and qualifications, and are not, and should not be construed or considered as, a guarantee. In addition, this opinion is being delivered on the express condition that neither Company nor counsel to the Company has any knowledge of any reason why any opinion expressed herein is not accurate in any material respect.

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

 

Very truly yours,

 

 

 

 

 

/s/ Harris Shelton Hanover Walsh, PLLC

 

 

 

 

 

HARRIS SHELTON HANOVER WALSH, PLLC

 

3


 EX-5.17 362 a2202241zex-5_17.htm EX-5.17

Exhibit 5.17

 

[Harris Shelton Hanover Walsh, PLLC Letterhead]

 

East Office

Suite 300

999 South Shady Grove Road

Memphis, Tennessee 38120-4126

 

Telephone   901-682-1455

Telecopier   901-435-0301 ttweel@harrisshelton.com www.harrisshelton.com

 

 

March 28, 2011

 

Downtown Memphis Office
Suite 2700
One Commerce Square
Memphis, Tennessee 38103-2555

 

Oxford, Mississippi Office
829 North Lamar Blvd., Suite 2
Oxford, Mississippi 38655

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Tennessee counsel to Memphis City Club, Inc. (“Memphis Club”), Nashville Club Management, Inc. (“Nashville Club”), Club Le Conte, Inc. (“Club LeConte”), each a Tennessee corporation, and Bluegrass Club, LLC (“Bluegrass Club”), a Tennessee limited liability company (individually, a “Guarantor”, and collectively, the “Guarantors”, and each of the foregoing corporations are sometimes referred to herein individually as “Corporate Guarantor” or, collectively as “Corporate Guarantors”, and the foregoing limited liability company is sometimes referred to herein as “LLC Guarantor”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Issuer of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Company, the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”). We understand that the Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture we understand has been filed with the Commission as an exhibit to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate or limited liability company, as applicable, and other records, agreements, documents, and other instruments and have made such other investigations as we have deemed relevant or necessary in connection with the opinions hereinafter set forth, including an examination of (a) the Officer’s Certificates executed by Ingrid J. Keiser, as Secretary, and Curt D. McClellan, as

 


 

Treasurer, each dated November, 2010, for each Guarantor (the “Officer’s Certificates”), and (b) the following attachments to the Officer’s Certificates: (i) Organizational Document (as defined in the Officer’s Certificates) of each of the Guarantors, (ii) Bylaws (as defined in the Officer’s Certificates for the Corporate Guarantors) for each of the Corporate Guarantors, (iii) Limited Liability Company Agreement (as defined in the Officer’s Certificate for the LLC Guarantor) for the LLC Guarantor, (iv) Resolutions (as defined in the Officer’s Certificates) of each of the Guarantors, and (v) certificates of good standing for each of the Guarantors (“Certificates of Good Standing”). As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors including the Officer’s Certificates and Certificates of Good Standing. For purposes of expressing the opinions in Paragraph 1 below, we have also relied upon the Certificates of Good Standing attached to the Officer’s Certificates.

 

In rendering the opinions set forth below, we have also made the assumptions referred to herein. We have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have assumed that the Exchange Notes and the Indenture are the Issuer’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantors) and the Trustee. We have assumed that the Organizational Documents, ByLaws, Limited Liability Company Agreement and Resolutions of the Guarantors, as applicable, remain in full force and effect and have not been revoked, amended, modified or rescinded, and that the Resolutions constitute the only resolutions adopted by any of the Guarantor’s equity owners or Board of Directors (as defined in the Officer’s Certificates) relating to the subject matter hereof. We have also assumed that the remaining certifications made in the Officer’s Certificates remain true and correct on the date hereof.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.                                       Each of the Guarantors is duly formed, validly existing and in good standing under the laws of the State of Tennessee, and has the corporate or limited liability company, as applicable, power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2.                                       The Indenture has been duly authorized by all requisite corporate or limited liability company, as applicable, action on the part of such Guarantor, and each of the Guarantors has duly executed and delivered the Indenture.

 

3.                                       The Guarantee by each Guarantor has been duly authorized by all requisite corporate or limited liability company, as applicable, action on the part of such Guarantor and issued by such Guarantors.

 

4.                                       The execution and delivery by each of the Guarantors of the Indenture and the performance of its obligations thereunder and the consummation of the transactions contemplated thereby (a) do not and will not violate its Organizational Document or Bylaws, and

 

2


 

(b) do not and will not violate any Tennessee statute or any rule or regulation issued pursuant to any Tennessee statute or any order identified to us by any such Guarantor and issued by any court or governmental agency or body and binding on any such Guarantor (it being understood that (i) no opinion is being rendered regarding any Tennessee securities or blue sky statutes, rules or regulations, (ii) no such order has been identified to us, and (iii) we have not undertaken any independent investigation to determine the existence or absence of any of such facts).

 

5.                                       When the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon consummation of the exchange described in the Registration Statement, the Guarantee of each of the Guarantors will constitute the valid and legally binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms.

 

Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing. We do not express any opinion concerning any law other than the laws of the State of Tennessee. We also express no opinion herein as to any (a) securities or blue sky disclosure laws or regulations; (b) antitrust or unfair competition laws or regulations; (c) tax or racketeering laws or regulations; or (d) local laws, regulations or ordinances.

 

In addition to the limitations, qualifications and assumptions set forth above, the foregoing opinions are subject to the following additional qualifications and assumptions:

 

(a)                                  Our opinions are limited to the review of such instruments or agreements specifically listed herein, and without any independent inquiry with respect to any proposed laws or proposed regulations or the existence or contents of any agreements or instruments to which any Guarantor is a party or to which any Guarantor is subject which we have not examined.

 

(b)                                 The opinions are limited to the matters set forth herein and no opinion may be inferred or implied beyond those explicitly stated herein.

 

(c)                                  We assume no obligation to supplement or update the opinions expressed herein if any applicable laws of the State of Tennessee change after the date hereof or if we become aware after the date hereof of any facts that might change the opinions expressed herein.

 

The foregoing opinions represent our reasoned judgment as to certain matters of law, based upon the foregoing facts presented, assumptions and qualifications, and are not, and should not be construed or considered as, a guarantee. In addition, this opinion is being delivered on the express condition that neither Company nor counsel to the Company has any knowledge of any reason why any opinion expressed herein is not accurate in any material respect.

 

3


 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very truly yours,

 

 

 

/s/ Harris Shelton Hanover Walsh, PLLC

 

 

 

HARRIS SHELTON HANOVER WALSH, PLLC

 

4


 EX-5.18 363 a2202241zex-5_18.htm EX-5.18

Exhibit 5.18

 

[ICE MILLER Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas  75234

 

Ladies and Gentlemen:

 

We have acted as special Indiana counsel to Skyline Club, Inc., an Indiana corporation (“Skyline Club”) and Knollwood Country Club, Inc., an Indiana corporation (“Knollwood Country Club”) (Skyline Club and Knollwood Country Club are referred to herein, collectively, as the “Indiana Guarantors” and, individually, an “Indiana Guarantor”), in connection with (a) the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Indiana Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) , relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”); and (b) the issuance by the Indiana Guarantors and the other guarantors (collectively, the “Guarantors”) of Guarantees (defined below) under Article 10 of the Indenture with respect to the Exchange Notes.  The Exchange Notes will be issued under an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the Guarantors (including the Indiana Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”).  Under Article 10 of the Indenture, the Company and the Guarantors (including the Indiana Guarantors) fully and unconditionally guaranteed (the “Guarantees”) the Exchange Notes when issued. The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

Materials Examined

 

In connection with the foregoing, we have examined originals or copies of the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement (collectively, the “Transaction Documents”) and the documents listed in the attached Exhibit A, which is made a part hereof.  For the purposes of this opinion letter, the documents listed in Exhibit A are hereinafter referred to collectively as the “Authorization Documents.”

 

We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records of the Indiana Guarantors, certificates and other communications of public officials, certificates of officers of the Indiana Guarantors and such other documents as we have deemed necessary including such information that is set forth below and on Exhibit A and that otherwise has been brought to our attention by certificates executed

 


 

and delivered to us by officers of the Indiana Guarantors or the Company, for the purpose of rendering the opinions expressed herein.  As to questions of fact material to those opinions, we have, to the extent we deemed appropriate, relied upon and assumed the accuracy of such records, documents, certificates of officers of the Indiana Guarantors, and certificates and other communications of public officials.  We have made such examination of the laws of the State of Indiana as we deemed relevant for purposes of this opinion, but we have not made a review of, and express no opinion concerning, the laws of any jurisdiction other than the State of Indiana.

 

Assumptions

 

We have relied upon and assumed the truth and accuracy of the representations, certifications and warranties made in the Transaction Documents and the Authorization Documents, and have not made any independent investigation or verification of any factual matters stated or represented therein.  Except to the extent expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of such facts or circumstances or the assumed facts set forth herein, we accept no responsibility to make any such investigation, and no inference as to our knowledge of the existence or absence of such facts or circumstances or of our having made any independent review thereof should be drawn from our representation of the Indiana Guarantors. In rendering this opinion letter to you, we have assumed with your permission:

 

(a)                                  The genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies, the due authorization (other than the authorization by the Indiana Guarantors of the Transaction Documents), execution and delivery by the parties thereto (other than the execution and delivery of the Transaction Documents by the Indiana Guarantors) of all documents examined by us, and the legal capacity of each individual who signed any of those documents.

 

(b)                                 At no time subsequent to the execution and delivery of the Indenture has the Indenture been amended by oral or written agreement or by conduct of the parties thereto and there are no other agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties, that would, in either case, define, supplement, or qualify any of  the terms and provisions of the Indenture.

 

(c)                                  All official public records (including their proper indexing and filing) furnished to or obtained by us, electronically or otherwise, were accurate, complete and authentic when delivered or issued and remain accurate, complete and authentic as of the date of this opinion letter.

 

(d)                                 The Authorization Documents or other organizational records of the Indiana Guarantors provided to us were accurate, complete and authentic when delivered and remain accurate, complete and authentic as of the date of this opinion letter. The Resolutions of each Indiana Guarantor identified in the attached Exhibit A  continue to be in full force and effect and have not been amended or rescinded since the date of adoption.

 

2


 

(e)                                  The financial condition of the Indiana Guarantors at all relevant times was such as permitted the authorization, execution and performance by each Indiana Guarantor of the Transaction Documents under Ind. Code 23-1-28.

 

(f)                                    Each Indiana Guarantor is a wholly owned subsidiary of the Company.

 

(g)                                 No Indiana Guarantor is engaged in any business other than the business now conducted by each Indiana Guarantor as noted in the Authorization Documents.

 

(h)                                 The members of the board of directors of each Indiana Guarantor who signed the Resolutions listed in the attached Exhibit A constitute all of the members of the board of directors of each Indiana Guarantor, have been duly elected by the shareholders of each Indiana Guarantor, respectively, and are qualified in all respects to serve as members of the board of directors of each Indiana Guarantor.

 

(i)                                     The Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture and the Guarantees are the valid and legally binding obligations of the Company, the Indiana Guarantors (except to the extent set forth in our opinions below), the other Guarantors and the Trustee.

 

Opinions

 

Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the assumptions, qualifications, exceptions and limitations set forth herein, we are of the opinion that:

 

1.                                       Each Indiana Guarantor is a corporation duly incorporated and validly existing under the laws of the State of Indiana, for which the most recent required biennial report has been filed with the Secretary of State, and no Articles of Dissolution appear as filed in the Secretary of State’s records.

 

2.                                       Each Indiana Guarantor has the requisite corporate power and authority under Indiana law and its Authorization Documents to (a) execute and deliver the Indenture; and (b) perform its financial obligations thereunder.

 

3.                                       Each Indiana Guarantor, by either Ingrid Keiser, as Secretary, or Curt McClellan, as Treasurer, (the “Authorized Officer”) of each Indiana Guarantor, has duly authorized, executed and delivered the Indenture.

 

4.                                       Each Indiana Guarantor, by its Authorized Officer, has duly authorized and issued the Guarantees under the Indenture.

 

5.                                       The execution and delivery by each Indiana Guarantor of the Indenture does not conflict with or violate (a) any provision of the Authorization Documents of each Indiana Guarantor, (b) any laws of the State presently in effect having general application to corporations organized under the laws of the State, or (c) to our knowledge, any judgment, writ, injunction, decree, order or ruling of any court or Governmental Authority binding on each Indiana

 

3


 

Guarantor (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).

 

Limitations and Qualifications

 

Our opinions as hereinabove expressed are subject to the following qualifications, limitations, assumptions and exceptions:

 

A.                                   Except as described in this opinion letter, we are not generally familiar with the Company, the Indiana Guarantors, the other Guarantors or their businesses, records, transactions, or activities.  Our representation of Indiana Guarantors in this Transaction is limited to review of the matters described herein and does not involve an overall knowledge of, or familiarity with the affairs, operations, obligations, the Company, the Indiana Guarantors, or the other Guarantors. We have made no search of the public records to determine the existence of any legal proceedings involving any Indiana Guarantor.  Accordingly, in rendering the opinions set forth in this opinion letter we have made no examination of, and express no opinion with respect to:  (i) the validity or enforceability of any of the Transaction Documents; (ii) the laws of any jurisdiction, other than the corporate laws of the State; (iii) securities or blue sky disclosure laws or regulations; (iii) the Securities Act or any other federal securities, antitrust or unfair competition laws and regulations; (iv) tax or racketeering laws or regulations; (v) any state (including the State) securities, antitrust or unfair competition laws and regulations; or (vi) local laws, regulations or ordinances.

 

B.                                     Whenever our opinions or confirmations herein with respect to the existence or absence of facts is indicated to be based upon our knowledge or belief, it is intended to signify that, during the course of our representation of the Indiana Guarantors, no information has come to the attention of the primary attorneys in this Firm who participated in the representation of the Indiana Guarantors in the transactions represented by the Transaction Documents, which would give us actual knowledge of the existence or absence of such facts.  Except to the extent expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of such facts or circumstances or the assumed facts set forth herein, we accept no responsibility to make any such investigation, and no inference as to our knowledge of the existence or absence of such facts or circumstances, or of our having made or not made any independent investigation thereof, should be drawn from our representation of the Indiana Guarantors.

 

C.                                     The opinions expressed herein are effective only as of the date hereof.  We do not undertake to advise you of any matter within the scope of this opinion letter that comes to our attention after the date of this opinion letter and disclaim any responsibility to advise you of any future changes in law or fact that may affect the opinions set forth herein.  We express no opinion other than as hereinbefore expressly set forth.  No expansion of the opinions expressed herein may or should be made by implication or otherwise.

 

This opinion letter is furnished to you by us as special Indiana counsel to the Indiana Guarantors and is only for your benefit.  Neither this opinion letter nor any opinion expressed

 

4


 

herein may be relied upon, nor may copies be delivered or disclosed to, any other person or entity without our prior written consent, except the foregoing opinions in this opinion letter may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.  In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.  The use or reliance upon this opinion letter by any other person or entity or for any other purpose is strictly prohibited.

 

 

Very truly yours,

 

 

 

/s/ Ice Miller LLP

 

ZAW/TWS/ml

 

5


 

EXHIBIT A

 

List of Authorization Documents for Skyline Club, Inc.

 

1.                                       Certificate of Existence for Skyline Club issued by the Secretary of State, dated March 23, 2011 (“Certificate of Existence”);

 

2.                                       Certified Articles of Amendment and Restatement of the Articles of Incorporation of Skyline Club, as amended from time to time (“Articles”) as certified in the Officer’s Certificate;

 

3.                                       Amended and Restated Bylaws of Skyline Club, as amended from time to time (“Bylaws”), as certified in the Officer’s Certificate;

 

4.                                       Unanimous Written Consent in Lieu of Special Meeting of Directors of Skyline Club (“Resolutions”), which adopts and authorizes among other things, the execution and delivery by Skyline Club of the Transaction Documents, as certified in the Officer’s Certificate;

 

5.                                       Officer’s Certificate (“Officer’s Certificate”) signed by Ingrid Keiser, as Secretary of Skyline Club, dated November 30, 2010, certifying certain factual matters and certifying the Articles, Bylaws and Resolutions of Skyline Club to be true and complete copies as of the date of the Officer’s Certificate; and

 

6.                                       Officer’s Certificate signed by Ingrid Keiser, as Secretary of Skyline Club and Knollwood Country Club, dated November 30, 2010, certifying certain factual matters.

 

List of Authorization Documents for Knollwood Country Club, Inc.

 

7.                                       Certificate of Existence for Knollwood Country Club issued by the Secretary of State, dated March 23, 2011 (“Certificate of Existence”);

 

8.                                       Certified Articles of Amendment and Restatement of the Articles of Incorporation of Knollwood Country Club, as amended from time to time (“Articles”) as certified in the Officer’s Certificate;

 

9.                                       Amended and Restated Bylaws of Knollwood Country Club, as amended from time to time (“Bylaws”), as certified in the Officer’s Certificate;

 

10.                                 Unanimous Written Consent in Lieu of Special Meeting of Directors of Knollwood Country Club (“Resolutions”), which adopts and authorizes among other things, the execution and delivery by Knollwood Country Club of the Transaction Documents, as certified in the Officer’s Certificate;

 

11.                                 Officer’s Certificate (“Officer’s Certificate”) signed by Ingrid Keiser, as Secretary of Knollwood Country Club, dated November 30, 2010, certifying certain factual matters and certifying the Articles, Bylaws and Resolutions of Knollwood Country Club to be true and complete copies as of the date of the Officer’s Certificate; and

 


 

12.                                 Officer’s Certificate signed by Ingrid Keiser, as Secretary of Knollwood Country Club and Skyline Club, dated November 30, 2010, certifying certain factual matters.

 

Exhibit A-2


 EX-5.19 364 a2202241zex-5_19.htm EX-5.19

Exhibit 5.19

 

[MITCHELL WILLIAMS Letterhead]

 

WRITER’S DIRECT DIAL

501-688-8806

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Ladies and Gentlemen:

 

We have acted as special Arkansas counsel to Diamante’ Golf Club Management, Inc. and Diamante’ Golf Club Partners, Inc., each an Arkansas corporation together (the “Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee (the “Trustee”). The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents, and other instruments and have made such other investigations as we have deemed relevant or necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion letter, we have relied upon

 


 

certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors.

 

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantors) and the Trustee.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.             Each of the Guarantors is a corporation, duly formed, validly existing and in good standing under the laws of the State of Arkansas, and has the power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2.             Each of the Guarantors has duly authorized, executed and delivered the Indenture.

 

3.             The Guarantees have been duly authorized and issued by each of the Guarantors.

 

4.             The execution and delivery by each of the Guarantors of the Indenture and the performance of its obligations thereunder and the consummation of the transactions contemplated thereby (a) do not and will not violate its organizational documents and (b) do not and will not violate any Arkansas statute or any rule or regulation issued pursuant to any Arkansas statute or any order identified to us by [any] such Guarantor and issued by any court or governmental agency or body and binding on [any] such Guarantor (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).

 

5.             When the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon consummation of the exchange described in the Registration Statement, the Guarantee of the Guarantors will constitute the valid and legally binding obligations of the Guarantors enforceable against the Guarantors in accordance with the terms of each Guarantee.

 

Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing.

 

2


 

We do not express any opinion concerning any law other than the laws of the State of Arkansas. We also express no opinion herein as to (a) securities or blue sky disclosure laws or regulations; (b) antitrust or unfair competition laws or regulations; (c) tax or racketeering laws or regulations; or (d) local laws, regulations or ordinances.

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

 

Very truly yours,

 

 

 

MITCHELL, WILLIAMS, SELIG,

 

GATES & WOODYARD, P.L.L.C.

 

 

 

 

 

By

/s/ W. Christopher Barrier

 

 

W. Christopher Barrier

 

WCB:jg

 

3


 EX-5.20 365 a2202241zex-5_20.htm EX-5.20

Exhibit 5.20

 

[Perkins Coie Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.
3030 LBJ Freeway, Suite 600
Dallas, Texas 75234

 

Re:                               $415,000,000 10% Senior Notes due 2018

 

Ladies and Gentlemen:

 

We have acted as special Illinois and Washington counsel to Columbia Tower Club, Inc., a Washington corporation (“Tower Club”) and The Metropolitan Club of Chicago, Inc., an Illinois corporation (“Metro Club” and together, with Tower Club, the “Relevant Guarantors”) in connection with the Registration Statement on Form S-4 (the “Registration Statement”) being filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Relevant Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), for the registration of the offer to exchange the Company’s existing 10% Senior Notes due 2018 issued on November 30, 2010 (the “Initial Notes”), together with the related guarantees of the Initial Notes by the Relevant Guarantors and other subsidiaries of the Company, for up to $415,000,000 aggregate principal amount of the Company’s 10% Senior Notes due 2018 (the “Exchange Notes”), together with guarantees of the Exchange Notes by the Relevant Guarantors and other subsidiaries of the Company (the “Exchange Offer”).  The Initial Notes were, and the Exchange Notes will be, issued pursuant to that certain indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Relevant Guarantors) and Wilmington Trust FSB, as trustee.  Except as otherwise indicated herein, capitalized terms defined in the Indenture are used herein as defined in the Indenture.

 

A.                                    Documents and Matters Examined

 

In connection with this opinion letter, we have examined originals or copies of such documents, records, certificates of public officials and certificates of officers and representatives of the Company and the Relevant Guarantors as we have considered

 


 

necessary to provide a basis for the opinions expressed herein, including the Indenture and the Registration Statement.   As to matters of fact material to the opinions expressed herein, we have relied on (a) information in public authority documents (and all opinions based on public authority documents are as of the date of such public authority documents and not as of the date of this opinion letter), (b) information provided in certificates of officers/representatives of the Company and Relevant Guarantors. (c) written statements of representatives of the Company and Relevant Guarantors and (d) the representations and warranties of the Company and Relevant Guarantors in the Indenture and Registration Statement.  We have not independently verified the facts so relied on.

 

B.                                    Assumptions

 

We have relied, without investigation, on the following assumptions:

 

B-1                              Original documents reviewed by us are authentic, copies of original documents reviewed by us conform to the originals and all signatures on executed documents are genuine.

 

B-2                              Each individual executing and delivering the Indenture or related documents is legally competent to do so.

 

B-3                              None of the Relevant Guarantors engage in a business that is a regulated type of business, including, without limitation, banking, insurance or a public utility.

 

B-4                              The Relevant Guarantors’ articles of incorporation, bylaws and resolutions that were attached to their respective officer’s certificates dated as of November 30, 2010 related to the Indenture and other matters, remain in full force and effect, are accurate as of the date hereof, and have not been amended, restated, amended and restated, supplemented or otherwise modified in any manner.

 

C.                                    Opinions

 

Based on the foregoing and subject to the qualifications and exclusions stated below, we express the following opinions:

 

C-1                              Tower Club is a corporation validly existing under Washington law.

 

C-2                              Metro Club is a corporation validly existing in good standing under Illinois law.

 

C-3                              Each of the Relevant Guarantors (a) had the corporate power to execute and deliver the Indenture at the time of such execution and delivery and had and has the power to perform its obligations under the Indenture (including the performance of its Note Guarantee), and (b) has taken all corporate action necessary to authorize the execution and delivery of the Indenture and performance of its obligations under the Indenture (including the performance of its Note Guarantee).

 

2


 

C-4                              The Relevant Guarantors have duly executed and delivered the Indenture.

 

C-5                              The Relevant Guarantors’ execution and delivery of the Indenture and performance of their obligations under the Indenture (including the performance of their Note Guarantee) do not:

 

(a)                                  (i) with respect to Tower Club, violate or conflict with the laws of the State of Washington and (ii) with respect to Metro Club, violate or conflict with the laws of the State of Illinois; or

 

(b)                                 conflict with, constitute a default under, or violate their respective articles of incorporations or bylaws.

 

D.                                    Qualifications; Exclusions

 

D-1                             The opinions expressed herein are subject to bankruptcy, insolvency and other similar laws affecting the rights and remedies of creditors generally and general principles of equity.

 

D-2                             Except to the extent expressly noted to the contrary in this opinion letter, we express no opinion as to the effect, if any, that one or more of the following matters may have on the opinions expressed herein:

 

(a)                                  federal securities laws and regulations administered by the Commission, state “blue sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments;

 

(b)                                 federal and state laws and regulations dealing with (i) antitrust and unfair competition; (ii) filing and notice requirements (e.g., Hart-Scott-Rodino), other than requirements applicable to charter-related documents such as a certificate of merger; (iii) environmental matters; (iv) land use, subdivisions, and licensing matters; (v) tax; (vi) patents, copyrights, trademarks and intellectual property; (vii) racketeering; (viii) health and safety; (ix) labor and employment; (x) national and local emergencies; (xi) possible judicial deference to acts of sovereign states; (xii) criminal and civil forfeiture; (xiii) statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); and (xiv) regulation of lenders or the conduct of the business of lenders and that may relate to the Indenture, Exchange Offer, or related transactions;

 

(c)                                  Federal Reserve Board margin regulations;

 

(d)                                 compliance with fiduciary duty requirements;

 

(e)                                  the statutes and ordinances, the administrative decisions, and the rules and regulations of counties, cities, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the federal,

 

3


 

state or regional level), and judicial decisions to the extent that they deal with any of the foregoing;

 

(f)                                    fraudulent transfer and fraudulent conveyance laws;

 

(g)                                 pension and employee benefit laws and regulations;

 

(h)                                 any Relevant Guarantors’ title to or the condition of title of any property; and

 

(i)                                     the creation, attachment, perfection, priority or enforcement of liens or encumbrances.

 

D-3                             We express no opinion as to the enforceability of the Indenture.

 

D-4                             We express no opinion as to the accuracy, completeness or sufficiency of any information contained in any filings with the Commission or any state securities regulatory agency, including the Registration Statement.

 

For purposes of expressing the opinions herein, (a) we have examined the laws of Illinois and Washington, and (b) our opinions are limited to such laws.  We have not reviewed, nor are our opinions in any way predicated on an examination of, the laws of any other jurisdiction, and we expressly disclaim responsibility for advising you as to the effect, if any, that the laws of any other jurisdiction may have on the opinions set forth herein.

 

The opinions expressed herein (a) are limited to matters expressly stated herein, and no other opinions may be implied or inferred and (b) are as of the date hereof (except as otherwise noted above).  We disclaim any undertaking or obligation to update these opinions for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to our attention.

 

This opinion letter is rendered only to you and is solely for your benefit in connection with the Registration Statement.  Notwithstanding the foregoing, the opinions herein may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with their providing certain legal opinions in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the prospectus included in the Registration Statement.  In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the related rules and regulations promulgated under the Act, nor do we admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in the Act or the related rules and regulations promulgated under the Act.  No expansion of our opinions may be made by implication or otherwise.  This opinion letter may not be used or relied on for any other purpose or by any other person without our prior written consent.

 

 

Very truly yours,

 

 

 

/s/  Perkins Coie LLP

 

4


 EX-5.21 366 a2202241zex-5_21.htm EX-5.21

Exhibit 5.21

 

[Quarles & Brady LLP Letterhead]

 

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Re:          $415,000,000 of 10% Senior Notes Due 2018

 

Ladies and Gentlemen:

 

We have acted as special Wisconsin counsel to each of the Wisconsin corporations listed on Schedule I hereto (each, an “Opinion Party” and collectively, the “Opinion Parties”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Opinion Parties, and other guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Opinion Parties and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”) among the Company, the guarantors named therein (including the Opinion Parties), and Wilmington Trust FSB, as trustee. The Company will offer the Exchange Notes and Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and related guarantees (collectively, the “Transaction”).

 

In such capacity, we have reviewed the following documents executed in connection with the Transaction:

 

(a)          The Registration Statement;

 

(b)         The Indenture (which has been filed with the Commission as an exhibit to the Registration Statement);

 

(c)          The amended and restated articles of incorporation and amended and restated bylaws of each of the Opinion Parties;

 

(d)         Certificates of active status regarding the Opinion Parties as of a recent date from the Wisconsin Department of Financial Institutions;

 

(e)          Resolutions of the board of directors of each of the Opinion Parties; and

 


 

(f)            such other documents as we, in our professional judgment, have deemed necessary or appropriate as a basis for the opinions set forth below.

 

Terms not defined herein shall have the meanings assigned thereto in the Registration Statement. The Indenture and the Guarantees are collectively referred to herein as the “Guarantor Documents.”

 

In rendering this opinion we have, with your permission, assumed, without investigation, verification or inquiry that:

 

(a)           Each of the parties to the Guarantor Documents (other than the Opinion Parties) is a corporation, limited liability company or other legal entity duly organized and validly existing under the laws of its jurisdiction of incorporation, organization or formation;

 

(b)           Each of the parties to the Guarantor Documents (other than the Opinion Parties) has the necessary right, power and authority to execute and deliver, and perform its obligations, if any, under, each of the Guarantor Documents to which it is a party; and the transactions therein contemplated have been duly authorized by all parties thereto (other than the Opinion Parties);

 

(c)           The Guarantor Documents have been executed, delivered, and accepted by all parties thereto (other than the Opinion Parties);

 

(d)           There is no oral or written agreement, understanding, course of dealing or usage of trade that affects the rights and obligations of the parties set forth in the Guarantor Documents, or that would have an effect on the opinions expressed herein; all material terms and conditions of the Transactions are correctly and completely reflected in the Guarantor Documents; and there has been no waiver of any of the provisions of the Guarantor Documents by conduct of the parties or otherwise;

 

(e)           All natural persons who are signatories to the Guarantor Documents were legally competent at the time of execution; all signatures on the Guarantor Documents and the other documents reviewed by us are genuine; the copies of all documents submitted to us are accurate and complete; each such document that is original is authentic; and each such document that is a copy conforms to an authentic original;

 

(f)            Any certificate or other document on which we have relied that was given or dated earlier than the date of this letter continued to remain accurate insofar as relevant to such opinions, from such earlier date through and including the date of this letter; and

 

(g)           all material factual matters, including without limitation, representations and warranties, contained in the Guarantor Documents, are true and correct as set forth therein.

 

2


 

Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the qualifications and exceptions herein contained, we are of the opinion that:

 

1.     Each Opinion Party is a corporation validly existing under the laws of the State of Wisconsin, and, based solely on certificates of the Wisconsin Department of Financial Institutions, has filed its most recent required annual report, and has not filed articles of dissolution, with the Wisconsin Department of Financial Institutions. Each Opinion Party has the corporate power and authority to execute and deliver the Indenture and to perform its respective obligations thereunder.

 

2.     The execution and delivery of the Indenture by Curt McClellan or Ingrid Keiser in their respective capacities as Treasurer and/or Secretary of each of the Opinion Parties has been duly authorized by all requisite corporate action of each Opinion Party.

 

3.     The Guarantees have been duly authorized and issued.

 

4.     The execution and delivery by each Opinion Party of the Indenture and the performance by each Opinion Party of its obligations thereunder does not (a) conflict with or violate any provision of the amended and restated articles of incorporation or the amended and restated bylaws of such Opinion Party, or (b) conflict with or violate any judgment, order, writ, injunction or decree binding on any Opinion Party of which we have actual knowledge, or (c) conflict with or violate any law, rule, regulation or ordinance of the State of Wisconsin applicable to the Opinion Parties.

 

The foregoing opinions are subject to the following additional assumptions and qualifications:

 

1.     Wherever we indicate that our opinion with respect to the existence or absence of facts is “to our knowledge” or the like, our opinion is, with your permission, based solely on the current conscious awareness of facts or other information of the attorneys currently with our firm who have represented the Opinion Parties in connection with the transactions contemplated by the Guarantor Documents.

 

2.     We have not examined the records of the Opinion Parties or any court or any public, private or other office in any jurisdiction (other than as expressly set forth herein), and our opinions are subject to matters that an examination of such records would reveal.

 

3.     This opinion deals only with the specific legal issues that it explicitly addresses and no opinions should be inferred as to matters not so addressed. Without limiting the foregoing, we express no opinion herein as to: (a) securities or blue sky laws and regulations; (b) antitrust and unfair competition laws and regulations; (c) tax, environmental, racketeering, health and safety, building, zoning, land use and subdivision laws and regulations; (d) income,

 

3


 

privilege, franchise, sales and use, personal property, real property or excise taxes; or (e) local laws, regulations, and ordinances.

 

The opinions expressed herein are limited to the laws of the State of Wisconsin as currently in effect. These opinions are given as of the date hereof, they are intended to apply only to those facts and circumstances that exist as of the date hereof, and we assume no obligation or responsibility to update or supplement these opinions to reflect any facts or circumstances that may hereafter come to our attention or any changes in laws that may hereafter occur, or to inform the addressees of any change in circumstances occurring after the date hereof that would alter the opinions rendered herein. This opinion is limited to the matters set forth herein, and no opinion may be inferred or implied beyond the matters expressly contained herein.

 

The foregoing opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement, and we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement. Other than as expressly set forth in the preceding sentence, this opinion may not be used or relied upon for any other purpose, relied upon by any other party, or filed with or disclosed to any governmental authority other than a court in connection with the enforcement or protection of rights or remedies under or relating to any of the Guarantor Documents, without our prior written consent.

 

 

Very truly yours,

 

 

 

/s/ Quarles & Brady LLP

 

 

 

Quarles & Brady LLP

 

4


 

Schedule I

 

Opinion Parties

 

Glendale Management Corp.

 

Glendale Racquet Club, Inc.

 


 EX-5.22 367 a2202241zex-5_22.htm EX-5.22

Exhibit 5.22

 

[SHER GARNER CAHILL RICHTER
KLEIN & HILBERT, L.L.C. Letterhead]

 

Robert P. Thibeaux, Member

 

rthibeaux@shergarner.com

Direct Dial: (504) 299-2110

Direct Fax: (504) 299-2310

 

 

 

(504) 299-2100

FAX (504) 299-2300

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, TX 75234

 

Ladies and Gentlemen:

 

We have acted as special Louisiana counsel to Southern Trace Country Club of Shreveport, Inc., a Louisiana corporation (the “Guarantor”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantor and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Issuer of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Company, the Guarantor and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantor) and Wilmington Trust FSB, as trustee (the “Trustee”). The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.

 

We have examined the Registration Statement and the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement. The Registration Statement is attached hereto as Exhibit “A”. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents, and other instruments and have made such other investigations as we have deemed relevant or necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantor, including the Officer’s Certificate dated November, 2010.

 

In rendering the opinions set forth below we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates

 


 

or certified or conformed copies and the authenticity of the originals of such latter documents. We have assumed that the Exchange Notes and the Indenture are the Issuer’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the Guarantor), and the Trustee.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.             The Guarantor is duly formed, validly existing and in good standing under the laws of the State of Louisiana, and has the power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

 

2.             The Guarantor has duly authorized, executed and delivered the Indenture.

 

3.             The Guarantee has duly authorized and issued by the Guarantor.

 

4.             The execution and delivery by the Guarantor of the Indenture and the performance of its obligations thereunder and the consummation of the transactions contemplated thereby (a) do not and will not violate its organizational documents and (b) do not and will not violate any Louisiana statute or any rule or regulation issued pursuant to any Louisiana statute or any order identified to us by such Guarantor and issued by any court or governmental agency or body and binding on such Guarantor (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).

 

5.             When the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon consummation of the exchange described in the Registration Statement, the Guarantee of the Guarantor will constitute the valid and legally binding obligation(s) of the Guarantor enforceable against the Guarantor in accordance with its terms.

 

Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing. We do not express any opinion concerning any law other that the laws of the State of Louisiana. We also express no opinion herein as to (a) securities or blue sky disclosure laws or regulations; (b) antitrust or unfair competition laws or regulations; (c) tax or racketeering laws or regulations; or (d) local laws, regulations or ordinances. We note that to the extent that Louisiana law is applicable to the Guaranty, a guarantor has a right to terminate its guaranty with respect to obligations following the date of termination, unless the creditor is obligated to allow the principal obligor to incur such obligations, or to the extent the creditor has changed its position in reliance on the guaranty and would be prejudiced by the termination.

 


 

The foregoing opinions may be relied upon by counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very truly yours,

 

 

 

Sher Garner Cahill Richter Klein & Hilbert, LLC

 

 

 

/s/ Sher Garner Cahill Richter Klein & Hilbert, LLC

 


 

Exhibit “A”- Registration Statement

 

Southern Trace Country Club of Shreveport, Inc. (the “Louisiana Corporation”)

 

Section 83A(l) of the Louisiana Business Corporation Law (the “LBCL”) permits corporations to indemnify any person who was or is a party or is threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, including any action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another business, foreign or nonprofit corporation, partnership, joint venture, or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.

 

Section 83A(2) of the LBCL provides that, in case of actions by or in the right of the corporation, the indemnity shall be limited to expenses, including attorneys fees and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the action to conclusion, actually and reasonably incurred in connection with the defense or settlement of such action, and that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable for willful or intentional misconduct in the performance of his duty to the corporation, unless, and only to the extent that the court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

 

Section 83(B) of the LBCL provides that to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith. Any indemnification under Section 83A of the LBCL, unless ordered by the court, shall be made by the corporation only as authorized in a specific case upon a determination that the applicable standard of conduct has been met, and such determination shall be made: (i) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit, or proceeding; (ii) if such a quorum is not obtainable and the board of directors so directs, by independent legal counsel; or (iii) by the stockholders.

 

The indemnification provided for by Section 83 of the LBCL shall not be deemed exclusive of any other rights to which the person indemnified is entitled under any bylaw,

 


 

agreement, authorization of stockholders or directors, regardless of whether directors authorizing such indemnification are beneficiaries thereof, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of his heirs and legal representative; however, no such other indemnification measure shall permit indemnification of any person for the results of such person’s willful or intentional misconduct.

 

The Louisiana Corporation’s certificate of incorporation limits the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except to the extent such limitation is not permitted under the LBCL.

 

The Louisiana Corporation’s by-laws provide that the Louisiana Corporation shall indemnify any person who is a director, officer or legal representative of the Louisiana Corporation or who is serving in such capacity at another entity at the request of the Louisiana Corporation to the fullest extent permitted by applicable law, if such person has acted in good faith an in a manner that he or she reasonably believed to in, or not opposed to, the best interest of the Louisiana Corporation. The Louisiana Corporation shall advance expenses incurred by such persons, provided that they undertake to repay all advancements if it is ultimately determined that they are not entitled to indemnification. If a claim for indemnification is not paid within thirty days, then such person may file suit for the unclaimed amount, and the Louisiana Corporation bears the burden of proving that such person is not entitled to indemnification. The right to indemnification is not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. The Louisiana Corporation shall be required to indemnify such person in connection with a proceeding commenced by the person only if the proceeding was authorized by the board of directors of the Louisiana Corporation.

 


 EX-5.23 368 a2202241zex-5_23.htm EX-5.23

Exhibit 5.23

 

March 28, 2011

 

[Shook, Hardy & Bacon LLP Letterhead]

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas  75234

 

Ladies and Gentlemen:

 

We have acted as special counsel in the State of Kansas (the “State”) to LionsGate Golf Club, Inc., a Kansas corporation (the “Guarantor”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Issuer”), the Guarantor and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Issuer of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantor and the other guarantors of guarantees with respect to the Exchange Notes.  The Exchange Notes will be issued under, and the guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Issuer, the guarantors named therein (including the Guarantor) and Wilmington Trust FSB, as trustee (the “Trustee”).  The Issuer will offer the Exchange Notes and the guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees.  In connection therewith, the Guarantor has requested that we deliver to you our opinion regarding certain matters.  Capitalized terms used without definition herein have the meanings assigned to such terms in the Indenture described below.

 

In such capacity, we have examined and reviewed executed copies of the following documents dated November 30, 2010 (collectively, the “Transaction Documents”):

 

A.                                   Registration Rights Agreement, among the Issuer, the Guarantor, other Guarantors, and the Purchaser; and

 

B.                                     Indenture, among the Issuer, the Guarantor, and other Guarantors, which we understand has been filed with the Commission as an exhibit to the Registration Statement.

 

For purposes of this opinion letter, the term “Guarantee” shall mean that certain guarantee given by the Guarantor in relation to the Indenture.

 

In rendering our opinions herein, we have also examined such matters of law, and examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such certificates of public officials, certificates of officers and other representatives of the Guarantor with respect to any factual matters involved which are relevant to this opinion, and other instruments and documents, as in our judgment are necessary or appropriate to enable us to render the opinions expressed in this opinion

 


 

letter.  Except as indicated in the previous sentence with respect to certificates of public officials and the Guarantor, we have not undertaken any independent investigation to determine the existence or absence of facts, conditions, and circumstances which might bear on the transactions described in the Transaction Documents.  As to various questions of fact material to our opinion, we have relied solely upon that certain Officer’s Certificate (the “Officer’s Certificate”), issued by the Guarantor and effective as of November 30, 2010 (a copy of which is attached hereto).

 

For purposes of rendering the opinions contained herein, we have made, with your permission and without independent investigation, the following assumptions:

 

a.                                       All signatures upon all documents submitted to us are genuine.

 

b.                                      Each individual executing and delivering the Transaction Documents and the Officer’s Certificate on behalf of the Guarantor is legally competent to do so.

 

c.                                       All factual matters, including without limitation, the statements, recitals, representations and warranties, set forth in the Transaction Documents and in any certificates given to us by the Guarantor, including the Officer’s Certificate, are accurate, true, correct, and complete as set forth therein.

 

d.                                      All certifications made to us by public officials concerning factual matters are accurate and complete as of the date hereof.

 

e.                                       (i) All documents submitted to us as certified, conformed, draft, photostatic, or telefacsimilied copies conform to the original documents; (ii) all such original documents and all documents submitted to us as originals are authentic; and (iii) all original executed documents conform to the unexecuted copies of the documents submitted to us, and none of the completions or attachments are or shall be inconsistent with the forms which we have reviewed.

 

f.                                         The transactions contemplated by the Transaction Documents that are to be consummated prior to or on the date hereof have been consummated prior to or simultaneously with the delivery of this opinion letter.

 

g.                                      The opinion recipients have acted in good faith and without notice of any defense (such as, but not limited to, fraud in the inducement, duress, waiver, or estoppel) against enforcement of any rights created by, or any adverse claim to, any property or security interest transferred or created as part of, or contemplated by, the Transaction Documents.

 

h.                                      There is no agreement, course of dealing or performance, or usage of trade defining, supplementing, amending, modifying, waiving, or qualifying the terms of any of the Transaction Documents.

 

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i.                                          The Guarantor’s Articles of Incorporation and Bylaws have not been amended, modified or terminated since the date of the Officer’s Certificate.

 

Based upon the foregoing, and subject to the assumptions, qualifications, and limitations set forth herein, we are of the opinion that:

 

1.                                       Based solely upon the certificate dated March 21, 2011, issued by the Secretary of State of the State of Kansas, the Guarantor is a corporation in good standing under the laws of the State of Kansas.  To our knowledge, the Guarantor is validly existing under the laws of the State of Kansas.

 

2.                                       The Guarantor has the corporate power and authority to execute, deliver, and perform the Guarantor’s obligations under the Transaction Documents and the Guarantee.

 

3.                                       The Transaction Documents have been duly and validly executed by the Guarantor.  To our knowledge, the Transaction Documents have been delivered by the Guarantor.

 

4.                                       The execution and delivery of the Transaction Documents and the Guarantee by the Guarantor, and the performance of the Guarantor’s obligations under the Transaction Documents and the Guarantee, has been duly authorized by all requisite action of the Guarantor.

 

5.                                       The execution and delivery by the Guarantor of the Transaction Documents and the performance by the Guarantor of its obligations under the Transaction Documents does not (a) conflict with or violate any provision of the Articles of Incorporation or the Bylaws of the Guarantor, (b) conflict with or violate any State law, rule, regulation, or to our knowledge, local ordinance applicable to the Guarantor, or (c) to our knowledge, conflict with or violate any judgment, writ, injunction, decree, order, or ruling of any State court or governmental authority binding on the Guarantor.

 

6.                                       When the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon consummation of the exchange described in the Registration Statement, the Guarantee of the Guarantor will constitute the valid and legally binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms.

 

Notwithstanding anything herein to the contrary, the foregoing opinions are further subject to the following qualifications, limitations, and comments:

 

(a)                                  The enforceability of the Guarantee may be (i) limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, receivership,

 

3


 

moratorium or similar laws affecting generally the enforcement of rights of creditors and contracting parties; (ii) subject to general principles of equity, including, without limitation, the doctrines of good faith, fair dealing, unconscionability, reasonableness and materiality, and the discretion of courts in invoking equitable remedies, including, without limitation, injunctive relief and specific performance (in each case whether such enforceability is considered in a proceeding in equity or at law); and (iii) subject to the qualification that certain provisions of the Transaction Documents may be unenforceable in whole or in part, but such unenforceability will not render the Transaction Documents invalid as a whole nor preclude judicial enforcement of repayment, acceleration of the obligations or foreclosure on the collateral in the event of a material breach of a payment obligation or other material provision of the Transaction Documents.

 

(b)                                 Notwithstanding any reference in the Transaction Documents or this letter to the laws of any other jurisdictions, the opinions expressed herein are limited solely to the laws of the State.

 

(c)                                  We have not reviewed and do not opine as to: (i) any zoning, health, safety, building, environmental, land use, subdivision, or similar local laws, ordinances, codes, rules, or regulations; (ii) ERISA laws, codes, rules, and regulations; (iii) Federal or state taxation, anti-trust, banking, securities or “blue sky” laws, codes, rules, or regulations; or (iv) the “USA PATRIOT” Act or so-called anti-terrorism laws, codes, rules, or regulations.

 

(d)                                 This opinion does not constitute a guaranty of the Transaction Documents or security therefor nor of any of the obligations or other matters referred to or opined upon herein.

 

(e)                                  In basing our opinions set forth in this opinion letter on “our knowledge,” the words “our knowledge” and other such similar language signify that, in the course of our representation of the Guarantor, no facts have come to the attention of the attorneys within our law firm who have been directly involved in representing the Guarantor in connection with the Note Offering or who we reasonably believe have knowledge of the affairs of the Guarantor that would give us actual knowledge or actual notice that any such opinions or other matters are not accurate or that the Transaction Documents are not accurate and complete.  Except as otherwise stated in this opinion, we have undertaken no investigation or verification of such matters.

 

(f)                                    The opinions set forth in this letter are effective as of the date hereof, unless reference is made herein to an earlier date relating to such opinion or to a certificate or other item with respect to which such opinion is based or with respect to which such opinion relates, in which case such opinion shall be effective as of such earlier date.  We express no opinion other than as expressly set forth herein, and no

 

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expansion of our opinions may be made by implication or otherwise.  We do not undertake to advise you of any matter within the scope of this letter or otherwise that comes to our attention after the date of this letter and disclaim any responsibility to advise you of any future changes in law or facts, including, without limitation, the occurrence or nonoccurrence of any subsequent events, that may affect the above opinions.

 

This letter is rendered to the addressee hereof, and its successors and assigns, in connection with the debt offering described in the Transaction Documents and may not be relied upon by any other person or entity or for any other purpose.  This letter may not be quoted in whole or in part nor may copies hereof be furnished or delivered to any other person or entity without obtaining in each instance our prior written consent thereto, except that the addressee hereof may furnish copies of this letter (i) to its respective independent auditors and attorneys; (ii) to any governmental or regulatory authority having jurisdiction over it; and (iii) pursuant to any order or legal process of any court of competent jurisdiction or any governmental agency.  Notwithstanding the foregoing, the opinions herein may be relied upon by the addressee’s counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement.  We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

 

 

Very truly yours,

 

 

 

/s/ Shook, Hardy & Bacon L.L.P.

 

 

 

SHOOK, HARDY & BACON L.L.P.

 

5


 EX-5.24 369 a2202241zex-5_24.htm EX-5.24

Exhibit 5.24

 

[WOMBLE CARLYLE SANDRIDGE & RICE Letterhead]

 

March 28, 2011

 

ClubCorp Club Operations, Inc.

3030 LBJ Freeway, Suite 600

Dallas, Texas 75234

 

Re:    Exchange Offer re: Issuance of Notes by ClubCorp Club Operations, Inc.

 

Ladies and Gentlemen:

 

We have acted as North Carolina and South Carolina counsel to Indigo Run Asset Corp., a South Carolina corporation (“Indigo”), Manager for CCHH, Inc., a South Carolina corporation (“CCHH”), Woodside Plantation Country Club, Inc., a South Carolina corporation (“Woodside”), and Harbour Club of Charleston, Inc., a South Carolina corporation (“Harbour”), The Manager of the Owner’s Club, Inc., a South Carolina corporation (“MOCI”), The Owner’s Club at Hilton Head, L.P., a South Carolina limited partnership (“OCHH”), Columbia Capital City Club Corp., a South Carolina corporation (“Columbia”), Piedmont Golfers’ Club LLC, a South Carolina limited liability company (“Piedmont”), The Commerce Club, Inc., a South Carolina corporation (“Commerce”), Capital City Club of Raleigh, Inc., a North Carolina corporation (“Raleigh”), Piedmont Club, Inc., a North Carolina corporation (“Piedmont Club”), and UNC Alumni Club Management, Inc., a North Carolina corporation (“Alumni”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by ClubCorp Club Operations, Inc., a Delaware corporation (the “Company”), the Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 (the “Exchange Notes”) and the issuance by the Guarantors and the other guarantors of the Guarantees (each, a “Guaranty” and collectively, the “Guarantees”) with respect to the Exchange Notes. The Exchange Notes will be issued under, and the Guarantees are issued as provided in, an indenture dated as of November 30, 2010 (the “Indenture”), among the Company, the guarantors named therein (including the Guarantors) and Wilmington Trust FSB, as trustee. The Company will offer the Exchange Notes and the Guarantees in exchange for up to $415,000,000 aggregate principal amount of its outstanding 10% Senior Notes due 2018 and the related guarantees (the “Notes Offering”). Indigo, CCHH, Woodside, Harbour, MOCI, OCHH, Columbia, Piedmont and Commerce are referred to collectively as the “South Carolina Entities”. Raleigh, Piedmont Club and Alumni are hereinafter referred to collectively as the “North Carolina Entities”. The South Carolina Entities and the North Carolina Entities are referred to collectively herein as the “Guarantors”.

 


 

For purposes of rendering this opinion, we have examined a copy of the Indenture, which Indenture has been filed with the Commission as an exhibit to the Registration Statement. In addition, we have reviewed the organizational documents listed below, which the Guarantors have represented to us are the only documents pursuant to which they are currently organized and/or which govern their affairs with respect to the Notes Offering (excluding Certificates of Existence, collectively, the “Organizational Documents”). In this regard we have assumed with your permission that the Organizational Documents were duly authorized by all necessary action and were executed and delivered by the persons authorized to do so:

 

(i)                                     With respect to Indigo:

 

(a)          Amended and Restated Articles of Incorporation of Indigo attached to the officer’s certificate of Indigo dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of Indigo attached to the officer’s certificate of Indigo dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(ii)                                  With respect to CCHH:

 

(a)          Amended and Restated Articles of Incorporation of CCHH attached to the officer’s certificate of CCHH dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of CCHH attached to the officer’s certificate of CCHH dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(a)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

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(iii)                               With respect to Woodside:

 

(a)          Amended and Restated Articles of Incorporation of Woodside attached to the officer’s certificate of Woodside dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of Woodside attached to the officer’s certificate of Woodside dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(iv)                              With respect to Harbour:

 

(a)          Amended and Restated Articles of Incorporation of Harbour attached to the officer’s certificate of Harbour dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Bylaws of Harbour attached to the officer’s certificate of Harbour dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(v)                                 With respect to MOCI:

 

(a)          Articles of Incorporation of MOCI attached to the officer’s certificate of MOCI dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of MOCI attached to the officer’s certificate of MOCI dated November 30, 2010, which was delivered to this Firm in connection with opinions

 

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rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(vi)                              With respect to OCHH:

 

(a)          Certificate of Limited Partnership of OCHH, and all amendments thereto, attached to the officer’s certificate of OCHH dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended Limited Partnership Agreement of OCHH attached to the officer’s certificate of OCHH dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(vii)                           With respect to Columbia:

 

(a)          Amended and Restated Articles of Incorporation of Columbia attached to the officer’s certificate of Columbia dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of Columbia attached to the officer’s certificate of Columbia dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(viii)                        With respect to Piedmont:

 

(a)          Articles of Organization of Piedmont, and all amendments thereto, attached to the officer’s certificate of Piedmont dated

 

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November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Third Amended and Restated Limited Liability Company Agreement of Piedmont attached to the officer’s certificate of Piedmont dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(ix)                                With respect to Commerce:

 

(a)          Amended and Restated Articles of Incorporation of Commerce attached to the officer’s certificate of Commerce dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of Commerce attached to the officer’s certificate of Commerce dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

(x)                                   With respect to Raleigh:

 

(a)          Articles of Restatement of Raleigh attached to the officer’s certificate of Raleigh dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of Raleigh attached to the officer’s certificate of Raleigh dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

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(c)               Certificate of Existence issued by the Secretary of State of North Carolina on March 14, 2011.

 

(xi)                                With respect to Piedmont Club:

 

(a)          Articles of Restatement of Piedmont Club attached to the officer’s certificate of Piedmont Club dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of Piedmont Club attached to the officer’s certificate of Piedmont Club dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of North Carolina on March 14, 2011.

 

(xii)                             With respect to Alumni:

 

(a)          Articles of Restatement of Alumni attached to the officer’s certificate of Alumni dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(b)         Amended and Restated Bylaws of Alumni attached to the officer’s certificate of Alumni dated November 30, 2010, which was delivered to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion.

 

(c)          Certificate of Existence issued by the Secretary of State of North Carolina on March 14, 2011.

 

We have also examined the originals, or copies certified or otherwise identified to our satisfaction, of excerpts from the corporate and partnership records and manager resolutions, as the case may be, of the Guarantors, as attached to the Officer’s Certificate dated November 30, 2010, delivered by each to this Firm in connection with opinions rendered by this Firm on November 30, 2010, and on which this Firm is entitled to rely in connection with this opinion (the “Authorizing Resolutions”).

 

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We have also reviewed and relied upon the e-mail correspondence attached hereto as Exhibit A from Amber Ferguson Imhoff, Associate Counsel of ClubCorp USA, Inc., with respect to the continued effectiveness of the Authorizing Resolutions and the Organizational Documents, and such certificates of representatives of the Guarantors as to factual matters, certificates of public officials and other instruments, documents and agreements as a basis for the opinions set forth below. In addition, we have relied as to factual matters upon the representations, warranties and certifications contained in the Indenture and in the Registration Statement.

 

Whenever any opinion below as to the existence or absence of facts is qualified by the phrase “to our knowledge,” such phrase indicates only that the lawyers of this Firm substantively involved in the representation of the Guarantors in connection with the Notes Offering have no actual knowledge of the existence or absence of such facts. Except to the extent expressly stated herein, we have not undertaken any independent investigation to determine the existence or absence of any such facts, and no inference as to our knowledge of the existence or absence of such facts should be drawn from the fact of our representation of the Guarantors.

 

Except to the extent otherwise set forth above, for purposes of this opinion, we have not made an independent review of any agreements, instruments, writs, orders, judgments, rules or other regulations which may have been executed by, or which may now be binding upon, any of the Guarantors or which may affect their respective assets, nor have we undertaken to review our internal files or any files of any of the Guarantors, relating to transactions to which the Guarantors may be a party, or to discuss their transactions or business with any other lawyers in our Firm or with any other representatives of any of the Guarantors.

 

We draw your attention to the fact that certain members and employees of this Firm may have membership interests in the clubs operated by one or more Guarantors.

 

Additional Assumptions

 

In rendering this opinion, we have assumed, with your express permission and without independent verification or investigation, each of the following:

 

(a)                             Each of the respective parties thereto (other than the Guarantors) has the full right, power and authority to execute, deliver and perform all of its obligations under the Indenture and all other documents required or permitted to be executed, delivered and performed thereunder and has taken all necessary action to enter into, and has duly executed and delivered, each such document.

 

(b)                            All natural persons executing the Indenture have the legal capacity to do so; all signatures on all documents submitted to us are genuine; all documents submitted to us as originals are authentic; all certificates of public officials and representatives of the Guarantors and the Company have been properly issued and are accurate; and all documents submitted to us as copies conform to the original documents, which themselves are authentic.

 

(c)                             The Indenture has been duly executed and delivered by the Company and Citigroup Global Markets Inc. through the persons authorized to do so.

 

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Opinions

 

Based upon the foregoing assumptions and subject to the qualifications, limitations and exceptions set forth herein, we are of the opinion that:

 

1.                                       Each of Indigo, CCHH, Woodside, Harbour, MOCI, Columbia and Commerce (the “South Carolina Corporations”) is a corporation in existence under the laws of the State of South Carolina with the corporate power to execute and deliver the Indenture and perform its obligations thereunder. Each of the South Carolina Corporations has authorized the execution and delivery of the Indenture, including its Guaranty included therein, by all necessary corporate action. In rendering our opinion that each of the South Carolina Corporations is a corporation in existence under the laws of the State of South Carolina, we have relied solely upon Certificates of Existence with respect to each South Carolina Corporation issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

2.                                       Piedmont is a limited liability company in existence under the laws of the State of South Carolina with the power under its Organizational Documents and the South Carolina Limited Liability Company Act (the “SC LLC Act”) to execute and deliver the Indenture and perform its obligations thereunder. Piedmont has authorized the execution and delivery of the Indenture, including its Guaranty included therein, by all necessary action under its Organizational Documents and the SC LLC Act. In rendering our opinion that Piedmont is a limited liability company in existence under the laws of the State of South Carolina, we have relied solely upon a Certificate of Existence with respect to Piedmont issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

3.                                       OCHH is a limited partnership in existence under the laws of the State of South Carolina with the power under its Organizational Documents and the South Carolina Uniform Limited Partnership Act (the “SC Partnership Act”) to execute and deliver the Indenture and perform its obligations thereunder. OCHH has authorized the execution and delivery of the Indenture, including its Guaranty included therein, by all necessary action under its Organizational Documents and the SC Partnership Act. In rendering our opinion that OCHH is a limited partnership in existence under the laws of the State of South Carolina, we have relied solely upon a Certificate of Existence with respect to OCHH issued by the Secretary of State of South Carolina, dated March 16, 2011.

 

4.                                       Each of the North Carolina Entities is a corporation in existence under the laws of the State of North Carolina with the corporate power to execute and deliver the Indenture and perform its obligations thereunder. Each of the North Carolina Entities has authorized the execution and delivery of the Indenture, including its Guaranty included therein, by all necessary corporate action. In rendering our opinion that each of the North Carolina Entities is a corporation in existence under the laws of the State of North Carolina, we have relied solely upon Certificates of Existence with respect to the North Carolina Entities issued by the Secretary of State of North Carolina, dated March 14, 2011.

 

5.                                       The Indenture has been duly executed and delivered by each of the Guarantors.

 

6.                                       The Guarantees have been duly issued by each of the Guarantors.

 

8


 

7.                                       The execution and delivery by each of the Guarantors of the Indenture and the consummation by the Guarantors of the transactions provided for therein do not violate their respective Organizational Documents.

 

8.                                       The execution and delivery by each of the Guarantors of the Indenture and the consummation by the Guarantors of the transactions provided for therein do not violate any applicable North Carolina or South Carolina law or, to our knowledge, any applicable order, writ, injunction, decree or ruling of any North Carolina or South Carolina court or governmental authority that is binding on the Guarantors.

 

This opinion is limited to the laws of the States of North Carolina and South Carolina, excluding the following legal issues or the application of any such laws or regulations to the matters on which our opinions are referenced: (i) securities and broker-dealer laws; (ii) the local laws of the State of North Carolina and the State of South Carolina (i.e., the statutes, ordinances, the administrative decisions and the rules and regulations of counties and municipalities of the States of North Carolina and South Carolina); (iii) antitrust and unfair competition laws and regulations; (iv) tax laws and regulations; (v) regulatory laws and regulations applicable to any entity as a result of its nonprofit status or solely because of the business in which it is engaged; (vi) environmental laws and regulations; (vii) employee benefit laws and regulations; (viii) banking regulatory laws; and (ix) laws, rules and regulations relating to money laundering and terrorist groups (including any requirements imposed under the USA Patriot Act of 2001, as amended). We are expressing no opinion as to the effect of the laws of any other jurisdiction. This opinion is rendered solely to the Company in connection with the Notes Offering and may be relied upon only by the Company and your counsel, Simpson Thacher & Bartlett LLP, in connection with the filing of the Registration Statement. This opinion may not be quoted in whole or in part or relied upon by any other party or for any other purpose other than the purposes herein stated without our prior written consent.  We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to any reference to the name of our firm in the Registration Statement.  In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

 

This opinion is rendered as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof.

 

 

Yours very truly,

 

 

 

WOMBLE CARLYLE SANDRIDGE & RICE

 

A Professional Limited Liability Company

 

 

 

/s/ Womble Carlyle Sandridge & Rice, pllc

 

KGC

HKM

 

9


 

EXHIBIT A

 


 

Harris, Jennifer

 

From: Toy, James
Sent: Monday, March 14, 2011 3:13 PM
To: ‘Avriett, Jennifer’
Cc: Fisher, Brian; Carroll, Ken
Subject: FW: ClubCorp - Local Counsel Opinion Confirmations

 

Jennifer,

 

Please see my questions and the ClubCorp responses below.  Thanks.

 

Jimmy

 

From: Amber.Imhoff@clubcorp.com [mailto:Amber.Imhoff@clubcorp.com]
Sent: Monday, March 14, 2011 12:09 PM
To: Toy, James
Cc: Ingrid.Keiser@clubcorp.com
Subject: Re: ClubCorp - Local Counsel Opinion Confirmations

 

(i) Neither the Company nor any of the co-registrants have modified or passed any other resolutions regarding the exchange offer or the notes.

 

(ii) Neither the Company nor any of the co-registrants have modified or amended their organization documents since November 30, 2010.

 

Amber Ferguson Imhoff
Associate Counsel
ClubCorp USA, Inc.
3030 LBJ Freeway, Suite 600
Dallas, Texas  75234
Direct:  (972) 406-4153
Fax:  (972) 888-6271
amber.imhoff@clubcorp.com

 

From:

“Toy, James” <JToy@stblaw.com>

To:

“Amber Ferguson Imhoff (amber.imhoff@clubcorp.com)” <amber.imhoff@clubcorp.com>

Date:

03/14/2011 02:01 PM

Subject:

ClubCorp - Local Counsel Opinion Confirmations

 

Amber,

 

Some local counsel have requested confirmation from the Company that the co-registrants (i) have not modified or passed any other resolutions regarding the exchange offer or the notes, aside from the

 


 

resolutions included in the officer’s certificates, dated November 30, 2010, and (ii) have not modified or amended their organization documents (charter, bylaws or equivalent) since those included in the officer’s certificates, dated November 30, 2010.

Could you please confirm by responding to this email, and I will forward on?

Thanks,
Jimmy

James Toy
Simpson Thacher & Bartlett LLP
2550 Hanover Street
Palo Alto, California  94304

 

Tel:  (650) 251-5051
Fax: (650) 251-5002
jtoy@stblaw.com


 EX-10.1 370 a2202241zex-10_1.htm EX-10.1

Exhibit 10.1

 

[ClubCorp Logo]

 

 

March 1, 2011

 

Dear Eric:

 

This letter restates the terms of your employment with ClubCorp USA, Inc. (“ClubCorp”), a wholly-owned subsidiary of ClubCorp Club Operations, Inc. (the “Company”), and supersedes any prior offer letter or employment agreement between you and ClubCorp or any predecessor employer relating to your employment with us.

 

As President and Chief Executive Officer of the Company, you will report directly to the Chairman of the Board of Directors of the Company (the “Board”).

 

Cash Compensation

 

You will be paid an annual base salary of $500,000, payable in accordance with our normal payroll practices.  You also will be eligible to earn an annual bonus of up to 100% of your base salary, payable in our discretion, based upon the performance of the Company, and your achievement of individual goals and objectives as set annually by the Board.  Such bonus, if any, will be paid subsequent to each fiscal year end, subject to the issuance of the financial audit for the Company’s prior fiscal year, in accordance with our normal practice of paying bonuses.  You must be in the employ of ClubCorp at the time bonuses are paid to receive any applicable bonus for the preceding fiscal year.

 

Equity

 

In connection with the commencement of your employment, you were admitted as a Management Member of Fillmore CCA Investment, LLC (the “Fillmore”) pursuant to the terms of the Fillmore Amended and Restated Limited Liability Agreement, as amended from time to time, and any units which were granted to you at that time will be retained by you, subject to the original terms of grant and all applicable amendments thereto.  In addition, you will be eligible to participate in any further management incentive program implemented for ClubCorp employees.

 

ClubCorp Health Benefit Plans, Investment Plan and Vacation Time

 

You will continue to be eligible for health, life, dental, vision, flexible spending accounts and long-term disability benefits commensurate with such benefits provided to other ClubCorp employees in positions comparable to yours, and, in the case of health insurance, subject to required employee contributions, deductibles, exclusions, co-payments, and waiting periods.  Additionally, you will continue to be eligible to participate in our Investment Plan.

 


 

You will be entitled to earn four (4) weeks of vacation each year (pro-rated for partial years).  The vacation earned is subject to the policies stated in our employee handbook.

 

Club Membership

 

During your employment, you will continue to receive club membership privileges at the local ClubCorp club of your choice, including a waiver of the monthly dues and executive-level Associate Clubs privileges.  This membership is non-transferable.

 

Additional Acknowledgement and Agreement

 

This letter is not a contract of employment for any specified period of time. You understand that your employment is at-will, regardless of any oral or written statements to the contrary, and may be terminated at any time for any reason by either you or ClubCorp.

 

Please sign two copies, retaining one (1) copy for your records and returning the additional copy to me on or before March 31, 2011.  If you have any questions, please do not hesitate to call.

 

 

Sincerely,

 

 

 

Ingrid J. Keiser

 

 

 

Ingrid J. Keiser

 

EVP - People Strategy & General Counsel

 

 

 

 

 

Agreed to this 1st day of March, 2011

 

 

 

/s/ Eric Affeldt

 

Eric Affeldt

 

 

2


 EX-10.2 371 a2202241zex-10_2.htm EX-10.2

Exhibit 10.2

 

[ClubCorp Logo]

 

October 30, 2008

 

Curt McClellan

Dallas, Texas

 

Dear Curt:

 

This letter outlines the terms of our conversation regarding your offer of employment with ClubCorp as Chief Financial Officer reporting directly to me.  You will also be a member of the Executive Committee.  This offer of employment is contingent upon the successful completion of a background check according to ClubCorp’s Background Check Policy.

 

You will be paid at the biweekly base rate of $10,769.23 (annualized rate $280,000.00).  You will begin work at ClubCorp on or before November 24, 2008.

 

Signing Bonus

 

You will receive a signing bonus of $40,000.00 (less applicable withholdings) payable with your first payroll cycle.

 

Incentive Compensation

 

You will have an additional incentive potential of 50% of actual eligible earnings for 2009. This bonus will be based on your eligible earnings during the 2009 fiscal year.  Your 2009 Incentive Worksheet and Plan Document will be sent at a later date.

 

ClubCorp Health Benefit Plans and Investment Plans

 

You will be eligible for health, life, dental, vision, flexible spending accounts and long-term disability benefits on your six-month anniversary. To enroll, you will need to call/or complete the necessary paperwork, if applicable, prior to your six-month anniversary. Your elections will be effective on the day you complete six- months of continuous service.  Dependent medical and dental coverage will also be available.  Additionally, you will be eligible to participate in the ClubCorp’s Individual Investment Plan (401k) six months from your date of employment.

 

COBRA Reimbursement

 

You will be reimbursed for COBRA payments for six months equal to the difference between what you would normally pay for ClubCorp health benefits and your out-of-pocket costs for COBRA.  The reimbursement will be paid in lum sum once you evidence your COBRA election and associated payments.

 

1


 

MPI and Equity

 

You will be eligible to participate in ClubCorp’s parent company managements profits interest program (MPI), and will be awarded 500 class B Units (which as of the date of award constitutes 5% of the B Units).  Your awarded B Units will be based on the valuation as of December 31, 2008, and provide you the ability to benefit from further appreciation in the value of such B Units.  Such B Units are subject to vesting, forefeiture, repurchase and other terms as set forth in the operative documents for the MPI.

 

In consideration of the award of the B Units, you will purchase 98.77 class A Units based on the valuation of such A Units as of December 31, 2008.  To the extent you desire, we will finance 80% of the purchase of such A Units at the lowest applaicable federal rate.

 

Class A Units represent purchased equity in ClubCorp’s parent company and class B Units represent the ability for senior management to earn additional profits in the parent company.  Further details will be addressed by separate cover.

 

Club Membership

 

You will receive club membership privileges at a local ClubCorp club of your choice with the intiation payment and monthly dues waived.  This membership is non-transferable.  You will also receive executive-level Associate Clubs privileges.

 

Vacation

 

You will earn four (4) weeks of vacation each year beginning on your hire date and each subsequesnt anniversary, subject otherwise to the policies stated in ClubCorp’s Benefits Guide.

 

Severance

 

Should your employment be terminated without cause (not to include your death or disability) within the first two years of your employment, you will receive severance pay in lump sum equal to two years of salary (i.e. $560,000.00 less applicable withholdings) if such termination occurs within the first six months of your employment and thereafter the severance will be equivalent to one year of your salary (i.e. $280,000.00 less applicable withholdings) if such termination occurs anytime during the subsequent eighteen months of your employment.

 

Additional Agreements Requiring Your Signature

 

Enclosed is a copy of a Confidentiality Agreement and Non-Solicitation Agreement for your signature.

 

If this is in agreement with our discussions, please print two copies of this letter then sign both copies, retaining one (1) copy for your records and returning the additional copy to me.

 

This letter is not a contract of employment for any specified period of time. You understand that your employment is at-will, regardless of any oral or written statements to the contrary, and may be terminated at any time for any reason by either you or ClubCorp.

 

2


 

We look forward to our mutual success.  If you have any questions, please do not hesitate to call.

 

Sincerely,

 

/s/ Eric Affeldt

 

 

 

 

 

Eric Affeldt

 

 

President and CEO

 

 

 

 

Agreed to this 30th day of October, 2008

 

/s/ Curt McClellan

 

 

Curt McClellan

 

 

 

3


 EX-10.3 372 a2202241zex-10_3.htm EX-10.3

Exhibit 10.3

 

[ClubCorp Logo]

 

December 4, 2006

 

Mr. Mark Burnett

5137 Gagne Drive

Fairfax, Virginia 22030

 

Dear Mark:

 

On behalf of ClubCorp USA, Inc., I am pleased to extend to you an offer of employment as the Executive Vice President of Golf and Country Club Operations effective December 1, 2006. We look forward to working with you, and to the contributions you will make to our golf and Country Club operations.

 

This offer is subject to a satisfactory background check, and includes the following terms and conditions:

 

(1)                                You will be paid at the biweekly rate of $11,538.46 (annualized $300,000) and you will have an additional incentive potential of 100% of eligible wages guaranteed for the 2007 year.

 

A compensation worksheet, which provides detail regarding performance scales and earnings for the variable component of pay will be provided under separate cover.

 

(2)                                You will receive a $275,000 sign-on bonus to be paid in January 2007.

 

(3)                                You will be eligible for health, life, dental, vision, flexible spending accounts and long-term disability benefits on your six-month anniversary. To enroll, you will need to call/or complete the necessary paperwork, if applicable, prior to your six-month anniversary. Your elections will be effective on the day you complete six-months of continuous service. Dependent medical and dental coverage will also be available. Additionally, you will be eligible to participate in our Investment Plans six months from your date of employment.

 

(4)                                  You will be provided with a one-time payment, equivalent to six months of your COBRA monthly premiums, less corresponding premiums under a comparable ClubCorp plan. This payment will be made to assist you in covering the costs of your health continuation coverage (“COBRA”) for the first six months of your employment. Election of the continued medical coverage and payment of all of the cost of the continued medical coverage will be your responsibility.

 

CLUBCORP USA, INC.
3030 LBJ Freeway, Suite 600 / Dallas, Texas 75234-7703 / Phone 972.243.6191 Fax 972.406.7953

 


 

(5)                                You will receive an Associate Club Membership approximately two weeks from receipt of your application. Guidelines outlining the use of the facilities and services will be provided to you.

 

(6)                                You have received a copy of Our Partnership and Our Benefits Guides covering policies, procedures, and privileges with which you will want to become familiar.

 

(7)                                The company is committed to a safe and healthful work environment free of substance abuse, for the protection and safety of our Employee Partners, Members and Guests. You will be asked to sign the certificate of Acknowledgment and the Consent for Drug and Alcohol Screening.

 

(8)                                Enclosed is a copy of a Confidentiality Agreement for your signature.

 

This letter supersedes any and all other agreements or offers, either verbal or in writing related to your employment.

 

Please sign and return one copy of this letter, indicating your acceptance of the offer. Also, please complete the paperwork previously provided to you and return it to Rita Felton, Employee Relations Manager, at your earliest convenience.

 

Mark, congratulations on your new responsibilities. We’re excited to have you as the newest addition to our team and look forward to our mutual success together.

 

If you have any questions or would like any assistance, please do not hesitate to call.

 

Sincerely,

 

/s/ Eric Affeldt

 

Eric Affeldt

 

President & CEO

 

 

It is understood that nothing in this letter or in any previous or future communications is intended or should be construed to guarantee employment for any specified period of time. It is understood that this relationship may be terminated at any time, by either party, with or without cause. It is likewise understood that the employment-at-will nature of this relationship cannot be altered by any statements, oral or written, made, or which may be made, contrary to the above.

 

Agreed to this 4th day of December, 2006

 

 

 

/s/ Mark Burnett

 

Mark Burnett

 

 


 EX-10.4 373 a2202241zex-10_4.htm EX-10.4

Exhibit 10.4

 

[ClubCorp Logo]

 

December 21, 2009

 

Dear Blake:

 

We are delighted to extend you an offer to become the newest addition to our team. This letter outlines the terms of our offer regarding your employment with ClubCorp USA, Inc.

 

This offer of employment is contingent upon the successful completion of a background check according to ClubCorp’s Background Check Policy.  If you begin employment prior to the completion of the background check, we reserve the right to terminate your employment based upon background check results.

 

You will begin your employment with ClubCorp on January 11, 2010, as Chief Development Officer, reporting directly to the President & CEO, Eric Affeldt, and be a member of ClubCorp’s Executive Committee.  You will be paid at the biweekly base rate of $11,538.46 (annualized rate $300,000.00).

 

As with all other salaried Employee Partners, you will be required to take two weeks of Unpaid Time Off (UTO) in 2010, and schedule the same (in non-consecutive one-week increments) with Eric’s approval.

 

Other Compensation

 

You will be eligible to earn additional compensation based upon your overall performance and the successful acquisition of golf and country clubs or other such assets; provided, however, the decision to acquire any properties and/or assets is subject to the approval of ClubCorp’s Board of Directors in its sole and absolute discretion.  The terms and amounts of such variable compensation will be determined based upon the nature and value of each property or asset to be acquired. For illustration purposes, a $5mm gross purchase price for an asset would include a 3% success fee of which a portion may be reserved for a period of time to determine the post-closing value of the asset, to be allocated amongst your departmental personnel, subject to the final approval of ClubCorp’s CEO.

 

ClubCorp Health Benefit Plans, Investment Plan, & Vacation Time

 

You will be eligible for health, life, dental, vision, flexible spending accounts and long-term disability benefits on your six-month anniversary. To enroll, you will need to call/or complete the necessary paperwork, if applicable, prior to your six-month anniversary. Your elections will be effective on the day you complete six-months of continuous service.  Dependent medical and

 

1


 

dental coverage will also be available.  Additionally, you will be eligible to participate in our Investment Plan six months from your date of employment.

 

You will earn three (3) weeks of vacation each year beginning with the date of hire and each subsequent anniversary date.  The vacation earned is subject to the policies stated in the employee handbook.

 

COBRA Reimbursement

You will be reimbursed for COBRA payments for six months equal to the difference between what you would normally pay for ClubCorp health benefits and your out-of-pocket costs for COBRA.  The reimbursement will be paid in lump sum once you evidence your COBRA election and associated payments.

 

Club Membership

During your employment, you will receive club membership privileges at a local ClubCorp club of your choice with the intiation payment and monthly dues waived.  This membership is non-transferable.  You will also receive executive-level Associate Clubs privileges.

 

MPI and Equity

 

You will be eligible to participate in ClubCorp’s parent company management profits interest program (MPI) and will be awarded 500 Class B Units based on the valuation as of December 31, 2009, and subject to your continued employment with ClubCorp will vest over 5 years as follows:  40% on January 11, 2012; 60% on January 11, 2013; 80% on January 11, 2014; and 100% on January 11, 2015.  Class B Units represent the ability for senior management to earn profits interests in the parent company and are subject to vesting, forefeiture, repurchase, coversion and other terms as set forth in the operative documents and further details will be addressed by separate cover.

 

We can also discuss your ability to purchase a certain number of class A Units (also valued as of December 31, 2008).  Class A Units represent purchased equity in ClubCorp’s parent company.

 

Additional Acknowledgement & Agreement Requiring Your Signature

 

This letter is not a contract of employment for any specified period of time. You understand that your employment is at-will, regardless of any oral or written statements to the contrary, and may be terminated at any time for any reason by either you or the Company.

 

Enclosed is a copy of a Confidentiality and Non-Solicitation Agreement for your signature.

 

If the terms set forth in this offer letter are is in agreement with discussions held, please sign two copies, retaining one (1) copy for your records and returning the additional copy to me on or before December 24, 2009.  If you have any questions, please do not hesitate to call.

 

2


 

Sincerely,

 

Ingrid J. Keiser

 

Ingrid J. Keiser

EVP - People Strategy & General Counsel

 

Enclosures

 

 

Agreed to this 21st day of December, 2009

 

/s/ Blake Walker

 

Blake Walker

 

 

3


 EX-10.5 374 a2202241zex-10_5.htm EX-10.5

Exhibit 10.5

 

SEVERANCE AND RELEASE AGREEMENT

 

This Severance and Release Agreement is made between Dwayne Sigler (“Employee”) and ClubCorp USA, Inc. (the “Employer”).  Employee, in return for and in consideration of the promises, payments and agreements Employer makes in this Agreement, and Employer, in return for and in consideration of the promises and agreements Employee makes in this Agreement, each agree to the following:

 

1.                                       Last Day of Employment and Final Paycheck.

 

Employee’s employment with Employer will end on December 21, 2010 (the “Triggering Termination Date”).  Employer will issue Employee a final paycheck through the Triggering Termination Date in accordance with applicable laws and to be comprised of the following less applicable federal, state, and local withholdings:

 

(1)          Wages earned through the Triggering Termination Date.

 

(2)          Earned and/or accrued but unused vacation pay as of the Triggering Termination Date.

 

2.                                       Severance Payments and other Consideration.

 

A.                                   In consideration for Employee’s promises, covenants, agreements, and releases set forth in this Agreement, Employer agrees that beginning on the next regular payroll date following Employee’s execution of this Agreement and the expiration of the revocation period described in Section 9.C. of this Agreement, Employer shall continue to pay Employee his biweekly wages based on his current “Base Pay” in accordance with Employer’s normal payroll periods (the “Severance Payments”) for a minimum of two (2) months and up to a maximum of nine (9) months. The Severance Payments made to Employee shall be subject to federal, state and local tax and other required withholdings.  While receiving the Severance Payments, should Employee secure full-time employment (defined as thirty [30] or more hours a week on average), or a consulting arrangement with an assignment lasting more than eight (8) weeks, then the Severance Payments will discontinue as of date Employee secures such employment or consulting arrangement, and Employer’s obligation to pay any additional Severance Payments shall cease as of the date Employee secures such employment or consulting arrangement; provided, however, that Employee shall have received a minimum of two (2) months of Severance Payments hereunder.  Employer may, at its discretion, pay any such remaining minimum amount of Severance Payments in lump sum to Employee.  Employee understands and acknowledges that despite receiving the Severance Payments, Employee shall not be an employee of the Employer nor required to perform any job related duties.

 

B.                                     Employer will waive its right to seek reimbursement of any portion of the Signing Bonus (as defined in Employee’s offer of employment letter dated December 7, 2009) previously received by Employee.

 

C.                                     Employee will be granted a “Club Membership” at the Trophy Club Country Club (the “Club”).  The initiation deposit/fee will be waived for the Club.  The Club Membership at the Club will be dues free, cart fees waived, food and beverage purchases will be discounted by fifty percent (50%), and Employee shall be permitted to invite up to three (3) guests without paying the guest rate. There are no other discounts associated with the Club Membership.  The Club Membership shall run for two (2) years after the Triggering Termination Date, unless otherwise terminated as provided for in this Section. Employee may not transfer, sell, pledge or encumber the Club Membership.   Employee must abide by all rules, regulations, and policies and otherwise pay all charges in a timely manner with the understanding that Club may terminate Employee’s Club Membership without the need for any grievance committee hearing in the event Employee does not abide by such requirements.

 

1


 

D.                                    Employee will be granted “Associate Club — Z Card” privileges for twelve (12) months following the Triggering Termination Date.  Employee is responsible for all charges incurred, which must be paid when due to retain Associate Club privileges.  Employee will be subject to all rules and regulations associated with Associate Club privileges.

 

3.                                       Other Benefits.

 

A.                                   Employee’s Group Term Life/Accidental Death & Dismemberment, Long Term Disability, or Supplemental Term coverage(s), if any, will end as of the Triggering Termination Date.  If Employee chooses to convert his current coverage, Employee must do so within 31 days from the Triggering Termination Date.  Employee may contact the People Strategy Support Center (1-800-800-4615) for details about the conversion. Employee will be responsible for paying premiums and conversion costs. This is the only notice Employee will receive regarding his conversion rights.

 

B.                                     Vested benefits, if any, under the ClubCorp Individual Investment Plan and Trust will be provided in accordance with the terms of the relevant plan document; provided, however, Employee agrees and acknowledges that Employee may not make further contributions to any such plans after the Triggering Termination Date.

 

C.                                     If eligible, Employee shall have the right to elect continuation of existing participation in the Employer-sponsored group health benefit plans, at Employee’s expense, under the federal law known as “COBRA”.

 

4.                                       Employee’s Promises to Employer.

 

A.                                   Upon the Triggering Termination Date, Employee will pay any money Employee owes Employer and will promptly return all of the Employer’s property, including without limitation keys, credit cards and computers.

 

B.                                     Employee agrees that he will not directly or indirectly disclose, divulge, communicate or use any confidential or proprietary information related to the business activities of the Employer or any of the Releasees.

 

C.                                     For a period of one year following the Triggering Termination Date, Employee agrees not to directly, on his own behalf or on behalf or in conjunction with another person or third party entity, recruit or solicit for hire any employees of Employer or the Releasees who have been employed during the sixty (60) days preceding the Triggering Termination Date or otherwise induce such employees to terminate their employment with Employer or any of the Releasees.

 

D.                                    Employee agrees not make any disparaging remarks regarding Employer or any of the Releasees.  If asked about the status or outcome of any dispute Employee has or had with Employer, Employee may reply that there are currently no disputes.

 

E.                                      Employee agrees to actively seek new employment and promptly notify Employer upon accepting any offer of employment or consulting arrangement.

 

5.                                       Employee’s Release of All Claims.

 

A.                                   In exchange for the payments and benefits described in Section 2 of this Agreement, which Employee acknowledges and agrees Employee is not otherwise entitled to, Employee releases All Claims (as defined in Section 5.B) Employee has against Employer and the other Releasees (as defined in Section 5.C) on the date Employee signs this Agreement, whether such claims are known or unknown to Employee, in return for Employer paying the payments and benefits described in this Agreement.

 

2


 

B.                                     The phrase “All Claims” in this Agreement is defined to mean any and all past or present claims, causes of action, rights, demands, damages, costs and compensation of any nature whatsoever, whether for compensatory damages, actual damages or punitive damages, whether in tort, in contract, in equity, at law or under statute, and whether now known or unknown, and whether foreseen or unforeseen, that arose from or during the employment relationship between Employee and Employer.

 

Nothing in this Agreement releases: (i) vested benefits, if any, Employee accrued under the Individual Investment Plan and Trust during employment with Employer; (ii) any workers compensation rights Employee may have; (iii) any rights, if any, that Employee may have to unemployment, state disability and/or paid family leave insurance benefits pursuant to the terms of applicable state law; (iv) Employee’s right, if eligible, to elect continuation of existing participation in the Employer-sponsored group health benefit plans under the federal law known as “COBRA” and/or under an applicable state counterpart law; (v) the violation of any federal, state or local statutory and/or public policy right or entitlement that, by applicable law, is not waivable; and (vi) any wrongful act or omission occurring after the date Employee signs this Agreement or the Triggering Termination Date, whichever is later.

 

C.                                     In consideration of the Severance Payments and other consideration described in Section 2, the adequacy and sufficiency of which Employee acknowledges, Employee, on his own behalf and on behalf of his agents, attorneys, affiliates, assigns and heirs, does hereby fully and completely release, discharge and acquit Employer, its parent, subsidiaries, and affiliates and their respective agents, successors, predecessors, present and former officers, directors, shareholders, servants, employees, members, representatives, general partners, limited partners, assigns and attorneys, and all other related persons or entities, whether named herein or not (all the foregoing who are being released in this Agreement are referred to collectively in this Agreement as “Releasees”), from all Claims that Employee may have, or allege to have, arising out of, or in any way relating to:

 

(i)                                     Employee’s employment with Employer or any Releasee, including without limitation the ending or termination of his employment with Employer, his position as an officer with any Releasee, and any applicable compensatory arrangements with Employer or any Releasee;

(ii)                                  All actions or omissions of Employer or any other Releasee during Employee’s employment through and including the date this Agreement is executed;

(iii)                               Any and all claims under the law of any jurisdiction, including, but not limited to, wrongful discharge of employment; constructive discharge from employment; termination from employment; termination in violation of public policy; discrimination, breach of contract, both express and implied; promissory estoppel; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; invasion of privacy and conversion;

(iv)                              Any and all claims for violation of any federal, state or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act; the Americans with Disabilities Act of 1990; the Fair Labor Standards Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Restraining Notification Act; the Family and Medical Leave Act and the Fair Credit Reporting Act;

(v)                                 Any and all claims for violation of the federal, or any state constitution;

(vi)                              Any and all claims arising out of any other laws or regulations relating to employment or employment discrimination; and

(vii)                           Any and all claims for attorney fees and costs for any action brought by Employee in connection with any of the foregoing claims.

 

Employee expressly understands and agrees that the payments and benefits described in this Agreement are in lieu of any and all other amounts to which Employee may be entitled or may become entitled to receive from Employer or any Releasee upon any claim whatsoever and, without limiting the generality of foregoing, Employee

 

3


 

expressly waives any claim to employment or reinstatement to employment, payment for salary, wages, back pay, front pay, paid leave, sabbatical pay, interest, tax gross-up amounts, bonuses, contributions to or vesting in any incentive, compensation or employee benefit arrangements, damages, accrued vacation, accrued sick leave, medical, benefits, accidental death and dismemberment coverage, life insurance benefits, overtime, severance pay and/or attorneys’ fees or costs, except as are expressly provided for in this Agreement.  Except as are expressly provided for in this Agreement, Employee understands and agrees that Employee will not be eligible for or entitled to any other amounts under any bonus plan, incentive plan, or any other severance arrangement or plan document, as in effect from time to time.

 

D.                                    It is the intention of Employee and Employer as expressed in this Agreement that Employee hereby releases, discharges, waives, relinquishes and covenants not to sue Employer and the other Releasees with respect to All Claims, whether on his own behalf or on behalf of third parties acting by, through or under him.  Nothing in this Agreement shall be construed to prohibit Employee from filing a charge or complaint with, or testifying, assisting or participating in investigations, proceedings or hearings conducted by the Equal Employment Opportunity Commission or comparable state or federal agency.

 

6.                                       No Liability Claimed.

 

Employee agrees that the execution of this Agreement and Employer’s performance of the consideration called for in this Agreement does not mean that either admits any liability to the other.  Both Employee and Employer agree this Agreement is a compromise of disputed claims, if any.  Employer and each of the other Releasees strictly deny they are liable to Employee, and Employee strictly denies Employee is liable to Employer or any other Releasees.

 

7.                                       Confidentiality.

 

Employee (for Employee as well as his spouse, agents and attorneys) promises and agrees not to offer any statements, press or media releases commenting on the terms of this Agreement. Employee further promises to take all reasonable steps to ensure the terms of this Agreement and even the existence of this Agreement will remain completely confidential (excluding communications as necessary with Employee’s spouse or tax preparer, provided they each also agree to these confidentiality provisions).  Nothing in this Section 7, or any other provision of this Agreement, is intended to prevent or prohibit Employee from (i) providing information regarding Employee’s former employment relationship with Employer, to the extent required by law or legal process; or (ii) cooperating, participating or assisting in any government entity investigation or proceeding, to the extent required by law or legal process.  Employee understands and acknowledges that Employer would not have entered into this Agreement if not for Employee’s agreement to the provisions of this Section 7.

 

8.                                       Employee Representations.

 

Employee hereby represents that Employee has not filed any action, complaint, charge, grievance or arbitration, or initiated any proceeding whatsoever, against Employer.

 

9.                                       Acknowledgement of Waiver of Claims Under ADEA

 

A.                                   Employee acknowledges that he is waiving and releasing any rights that Employee may have under the Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and release is knowing and voluntary.  Employee and Employer agree that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the effective date of this Agreement.  Employees acknowledge that the consideration given for this Agreement is in addition to anything of value to which Employee is already entitled.  Employee further acknowledges that he has been advised by this writing that: (i) Employee should consult with an attorney prior to

 

4


 

executing this Agreement; (ii) Employee has up to twenty-one (21) days within which to consider this Agreement; and (iii) nothing in this Agreement prevents or precludes Employee from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law.  If Employee has not returned the signed Agreement within the time permitted, then the offer of payments and benefits set forth herein will expire by its own terms at such time.

 

B.                                     If Employee signs this Agreement less than twenty-one (21) days after receiving it, he does so knowingly and voluntarily, and waives any right he might have under the Age Discrimination in Employment Act, as amended, to the full twenty-one (21) days to consider this Agreement.

 

C.                                     Employee understands that he has the right to revoke this Agreement in writing with respect to any age discrimination claims within seven (7) days of the date he signs it, by sending written notice of said revocation to Employer within said seven (7) day period, to the attention of the Employer’s human resources representative, and that if Employee revokes this Agreement, he will not be entitled to any payments from Employer or Releasees under this Agreement.  Employee further understands that this Agreement, including the ADEA waiver, shall not be effective until the seven (7) day revocation period has expired.

 

10.                                 Review of Agreement; Consultation with Attorney:  Employee acknowledges and certifies that he:

 

(a)                                  Has read and fully understands all of the terms of this Agreement and does not rely on any representation or statement, written or oral, not set forth in this Agreement;

 

(b)                                  Has had a reasonable period of time to consider this Agreement;

 

(c)                                  Is signing this Agreement knowingly and voluntarily;

 

(d)                                  Has had the right to consider the terms of this Agreement during a twenty-one (21) day review period, and understands that if fewer than twenty-one (21) days were used to review this Agreement, Employee hereby waives any and all rights to the balance of the review period; and

 

(e)                                  Has the right to revoke this Agreement within seven (7) days after signing it by notifying Employer in writing and delivery to the Employer’s human resources representative.

 

11.                                 Additional Important Understandings, Agreements and Promises:

 

A.                                   Employee is a Management Member as defined in and pursuant to that certain Amended and Restated Limited Liability Company Agreement of Fillmore CCA Investment, LLC dated as of February 5, 2007 and subsequently amended (collectively the “LLC Agreement”).   Employee acknowledges and agrees that in connection with Employee’s termination of employment, all Class B Units (as defined in the LLC Agreement) held by Employee as a Management Member are forfeited in accordance with the LLC Agreement.

 

B.                                     Employee acknowledges that at all times during the discussions regarding the termination of his employment relationship and at all times regarding the negotiation of the terms and conditions included in this

 

5


 

Agreement, Employee has had the right to consult an attorney of Employee’s choice and that Employee has been informed by Employer that Employee should consult with an attorney prior to signing this Agreement.

 

C.                                     Employee acknowledges that if Employee breaches any of his promises or covenants contained in this Agreement, including without limitation his promises made in Section 4 of this Agreement, Employer will not have an adequate remedy in law and accordingly Employer may, at its discretion, discontinue the Severance Payments and Employee shall forfeit all rights to receive any further Severance Payments, subject to Employee receiving a minimum of one (1) month of Severance Payments hereunder, and Employee shall further forfeit all rights under Sections 2.B. and 2.C. of this Agreement..  Employer may, at its discretion, pay any such remaining minimum amount of Severance Payments in lump sum to Employee.

 

D.                                    In the event that, any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful or unenforceable for any reason, the invalid, unlawful or unenforceable provision (or portion thereof) shall be construed or modified so as to provide all of the Releasees with the maximum protection that is valid, lawful and enforceable, consistent with the intent of Employer and Employee in entering into this Agreement.  If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision (or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of this Agreement (or provision), and the remainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof) had never been contained in this Agreement.

 

E.                                      This Agreement shall be construed and interpreted in accordance with the laws of the State of  Texas and shall be binding on Employee’s representatives, successors, heirs and assigns, if any, as well as the Releasees and their representatives, successors, heirs and assigns, if any.  To the fullest extent permitted by law, Employee and Employer waive any rights to demand a trial by jury with respect to any dispute related to or arising out of this Agreement.  In any action for breach of this Agreement or to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable costs of suit, including reasonable attorneys’ fees.

 

 

EMPLOYEE:

 

EMPLOYER:

 

 

 

/s/ Dwayne Sigler

 

/s/ Curt McClellan

Employee’s Signature

Date 12/21/10

 

Employer’s Signature

Date 12/21/10

 

 

 

By:

Curt McClellan

 

 

 

Its:

Chief Financial Officer

 

6


 EX-10.6 375 a2202241zex-10_6.htm EX-10.6

Exhibit 10.6

 

[ClubCorp Logo]

 

 

2011 Incentive Plan Document

 

 

Regional &
Corporate

 


 

Table of Contents

 

Introduction

2

 

 

Individual Performance Factors and Measures

2

 

 

General Plan Policies & Procedures

3

 

 

Eligibility

3

 

 

Awards

3

 

 

Administration

3

 

 

Adjustments Upon Certain Events

3

 

 

No Right to Employment or Awards; No Transferability of Awards

4

 

 

Amendments; Termination; Interpretation

4

 

 

Important Terminology

5

 

1


 

Introduction

 

Congratulations on your participation in the 2011 Incentive Compensation Plan (“Plan”).  The purpose of this Plan is to provide a mechanism to meaningfully reward you for contributing to the Company’s success. The 2011 incentive compensation will be dependent on your Individual Performance, your department/ Region’s performance, and the Company’s performance.  We appreciate your continued contributions to the long-term success of your department, Region, and the Company.

 

Individual Performance Factors and Measures

 

There are a number of performance factors and measures that will be taken into consideration in determining what, if any, Award is made for 2011 including:

 

·                  Company and Region Adjusted EBITDA Performance as compared to the Budget;

 

·                  Company and Region Net Dues Performance as compared to the Budget;

 

·                  Cost control efforts and associated flow through results;

 

·                  Meeting departmental strategic initiatives;

 

·                  Performance Review(s); and

 

·                  Other performance factors assigned by the Participant’s Supervisor.

 

Performance factors and/or measures may be revised to reflect significant changes in the Company, Regional, and/or Departmental strategies or other changes in business conditions or as otherwise determined by the Committee at its discretion.

 

Notwithstanding anything contained in this Plan to the contrary, unless otherwise determined by the Committee at its sole discretion, no amount shall be payable under the Plan in the event that the Company EBITDA Performance for 2011 is less than the Company EBITDA Minimum.

 

2


 

General Plan Policies & Procedures

 

Eligibility

 

·                  Employee Partners can be Participants as approved by the Committee to be a Participant.

 

·                  A Participant must be employed by the Company for at least 3 months to be eligible to receive a cash payment pursuant to an Award.  An Employee Partner who is otherwise eligible but who has been employed for less than all of 2011 will be eligible for an Award based upon Actual Eligible Earnings and the performance factors and measures for the full 2011 fiscal year.

 

·                  If a Participant is newly hired, promoted or transferred to a new position during the year, any Award will be calculated based on the Actual Eligible Earnings earned in each position and the Incentive Potential listed in the Participant’s offer letter, may be modified from time-to-time by the Committee at its sole discretion.

 

·                  A Participant’s termination of employment (voluntary or involuntary) for any reason before the date on which an Award is paid by the Company will result in forfeiture of the Award.  In addition, any Participant who is reassigned or demoted during the Company’s 2011 fiscal year will no longer be eligible for an Award or any payment pursuant to this Plan.

 

·                  Awards will be calculated based on the Actual Eligible Earnings for the applicable incentive eligible position of each Participant and the performance factors.

 

Awards

 

Regardless of whether any performance factors or measures are met, any amounts which may be awarded at the Committee’s discretion will be subject to the issuance of the financial audit for the Company’s 2011 fiscal year.  The Committee shall have the discretion of whether any amount may be payable after the Committee has determined whether the Company EBITDA Minimum has been satisfied.  No amount shall be payable if the Company EBITDA Minimum is not satisfied.    In all events, any amounts which may be paid are subject to applicable withholding and other payroll taxes.  Any Award will be automatically forfeited if the Participant is not employed at the time of payment. Notwithstanding the foregoing, a Participant who is on a Family and Medical Leave Act leave or Uniformed Services Employment and Reemployment Rights Act leave on the date of payment of the Award shall be treated as employed on said date.

 

Administration

 

The Committee shall have sole authority to determine whether any amount will be awarded under this Plan or under any Award issued under this Plan.  The Committee reserves the right to reduce or eliminate this Plan and any Award, including the determination to cancel an Award that may be granted hereunder at any time at its sole discretion. All decisions of the Committee shall be final and conclusive and without liability to any person.  The Committee may decide, at its sole discretion, that no amount may be paid hereunder should the Committee determine that the circumstances warrant either as a result of a Participant’s performance or other actions, or, with respect to the overall condition (financial or otherwise) of the Company.  No amount shall be set aside in a trust or otherwise segregated to fund the payment of any Award hereunder.

 

Adjustments Upon Certain Events

 

The Company EBITDA Minimum is established with respect to the entities included in the Company’s consolidated financial statements as of December 28, 2010 (the “Company Group”) and the Company

 

3


 

EBITDA Minimum must be met by such Company Group and any divestitures shall not reduce or cause any adjustment to the Budget.  In the event any new properties or entities are acquired or added to the Company Group after December 28, 2010, the Committee may adjust the Budget with respect to each such added property or entities within 90 days of the closing of such acquisition in order to adjust the Company EBITDA Minimum for the budgeted performance of such properties/entities.  In the event of any change in the Company or any of its Subsidiaries by reason of any sale, disposition, closing of a Club, spin-off, combination or any transaction or event similar to the foregoing with respect to the Company, a Subsidiary or any Club, or any other transaction or event determined by the Committee to be applicable, there shall be no adjustment to the Company EBITDA Minimum or any Award under this Plan.   The Committee may, at its sole discretion and without liability to any person, adjust the Company EBITDA Minimum to consider any new or added entities or Clubs, if any, as it deems appropriate at its sole discretion, including with respect to establishing performance factors and measures with respect to such addition, provided such performance features or measures are established within 90 days of the addition.

 

No Right to Employment or Awards; No Transferability of Awards

 

Information contained in this Plan and any other communications made by management do not constitute an implied or expressed contract or binding agreement between the Company and any Participant.   The granting of an Award shall impose no obligation on the Company or any Subsidiary to continue the employment of a Participant and shall not lessen or affect the Company’s or Subsidiary’s right to terminate the employment of such Participant.  No Participant or other person shall have any claim to any term of employment by reason of any Award or this Plan and all employment shall continue to be employment at will.  No Participant or other person shall have any claim to be granted any Award or be vested in any Award at any time, and there is no obligation for uniformity of treatment of Participants.  The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant (whether or not such Participants are similarly situated).  Any Award shall be personal to the Participant and is not assignable or subject to voluntary or involuntary alienation, sale or transfer by the Participant to any beneficiary or otherwise.

 

Amendments; Termination; Interpretation

 

Notwithstanding that the Company EBITDA Minimum may have been met, the Committee reserves the right, at its sole discretion, to change, modify, alter or eliminate this Plan and any Award or payment which may be paid at any time, regardless of whether any performance factors or measures are met. Without limiting the generality of the foregoing, to the extent applicable, notwithstanding anything herein to the contrary, this Plan and any Awards granted hereunder shall be interpreted in accordance with the laws of the State of Texas, and, if applicable, Section 409A of the Internal Revenue Code and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued (“Section 409A”) .  Notwithstanding any provision herein to the contrary, in the event Section 409A is applicable to any Award issued hereunder and the Committee determines that any amounts which may be paid hereunder will be taxable to a Participant and not in compliance with Section 409A prior to payment to such Participant of such amount, the Company may (i) adopt such amendments and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of any Award paid hereunder and/or (ii) take such other actions as the Committee determines necessary or appropriate to comply with the requirements of Section 409A.

 

This document supersedes all prior incentive compensation plans or agreements regarding the subject matter of this Plan, each of which is of no further force and effect.

 

4


 

Important Terminology

 

“Actual Eligible Earnings” means base pay, vacation, jury duty and other categories if part of regular wages (e.g. service charge pay outs) paid during the incentive period for the eligible positions.  It does not include incentive/bonus awards, tips, discretionary bonuses, commissions, relocation or other pay not considered as part of regular wages.

 

“Adjusted EBITDA” means EBITDA excluding certain items, including without limitation impairments and write-offs, changes in interest rate cap agreements, gains or losses due to discontinued or divested operations, or other similar events, and may be adjusted by the Committee at its sole discretion, including consideration of non-recurring events.

 

“Adjusted EBITDA Performance” means the Adjusted EBITDA for each Region and the Company as determined by the Committee.  Performance will be based on pre-bonus expenses.

 

“Award” means the discretionary amount awarded to a Participant based upon the Participant’s Incentive Potential and Actual Eligible Earnings which may, at the Committee’s discretion, be paid to such Participant.  Awards may contain such other terms and conditions as determined by the Committee at its sole discretion.

 

“Budget” means the 2011 budgeted amount for Adjusted EBITDA Performance and Net Dues Performance as determined by the Committee for each Region and/or the Company.

 

“Club” means a business, sports, golf or country Club of the Company or its Subsidiaries as determined by the Committee.

 

“Committee” means a Committee of the Board of Directors of the Company or designated by the Board of Directors of the Company.

 

“Company” means ClubCorp Club Operations, Inc., a Delaware corporation.

 

“Company EBITDA Minimum” means 96% of Adjusted EBITDA Budget for the Company and its Subsidiaries.  Such amount shall be subject to adjustment as determined by the Committee, as set forth under “Adjustments Upon Certain Events”.

 

“Company EBITDA Performance” means the aggregate Adjusted EBITDA Budget for the Company and its Subsidiaries as determined by the Committee.

 

“Dues Added” means the added memberships dues including but not limited to new members, transfers, category upgrades, and upgrades to Society and/or Signature Gold as determined by the Committee.  The Committee at its sole discretion may exclude dues added from special promotions or offerings.

 

“Dues Lost” means the lost memberships dues including but not limited to resignation, write offs, or outgoing relocations as determined by the Committee.

 

“EBITDA” means earnings before interest, taxes, depreciation and amortization.

 

“Golf Revenue” for a public golf course means the gross revenue obtained from all golf related activities at each public course.

 

“Incentive Potential” means the maximum percentage of Actual Eligible Earnings the Participant may receive in an Award. The Incentive Potential is listed in the Participant’s offer letter, as may be modified from time-to-time by the Committee at its sole discretion.

 

“Individual Performance” means the Participant’s individual performance as determined by the Participant’s supervisor with the approval of the Committee.

 

5


 

“Member Survey Scores” means the rating scores tabulated from a membership survey, including but not limited to Mindshare scores.

 

“Net Dues Performance” means the aggregate amount (whether positive or negative) by which the gross Dues Added exceed or are offset by the aggregate amount of Dues Lost for all dues categories.  Net Dues Performance for a Region with public golf Clubs means the amount of Golf Revenue for such Region.

 

“Participant” means an Employee Partner employed by the Company or a Subsidiary who is designated by the Committee to be eligible to receive an Award.

 

“Region” means the group of Clubs that the Participant is responsible for including the Participant’s home Club, if applicable, as determined by the Committee.

 

“Subsidiary” means a direct or indirect subsidiary of the Company as determined by the Committee.

 

Effective:  January 2011

 

6


 EX-10.7 376 a2202241zex-10_7.htm EX-10.7

Exhibit 10.7

 

[ClubCorp Logo]

 

 

Long Term Incentive Plan Document

 


 

Introduction

 

The purpose of the Long Term Incentive Plan (this “Plan”) is to provide a mechanism to meaningfully reward Participants for contributing to the Company’s long term success and is subject to the Company’s performance.

 

Performance factors and/or measures may be revised to reflect significant changes in the Company as otherwise determined by the Committee consistent with the provisions under “Adjustments Upon Certain Events” below.  The Company hereby grants to the Committee the sole discretion to make all determinations of eligibility for participation, the satisfaction of the Company Adjusted EBITDA Minimum, the amount of any Awards, exclusions, limitations, adjustments, or amendments to this Plan or to any Award hereunder, reductions in benefits, and whether there is a termination of employment.

 

Notwithstanding anything contained in this Plan to the contrary, no amount shall be payable under this Plan in the event that the Adjusted EBITDA Performance for the Company’s 2013 fiscal year is less than the Company Adjusted EBITDA Minimum.

 

General Policies & Procedure

 

Eligibility

 

·                  Participants must be employed by the Company or a Subsidiary and approved by the Committee to be a Participant.

 

·                  Participants must be continuously employed by the Company or a Subsidiary for at least three years commencing with the Company’s 2011 fiscal year to be eligible to receive a cash payment pursuant to an Award and must continue to be employed through the date on which the Award is paid by the Company.

 

·                  A Participant’s termination of employment (voluntary or involuntary) for any reason before the date on which an Award is paid by the Company will result in forfeiture of the Award.  In addition, any Participant who is demoted will no longer be eligible for an Award or any payment pursuant to this Plan.

 

Award

 

The Company Adjusted EBITDA Minimum may only be determined to be met following the issuance of the financial audit for the Company’s 2013 fiscal year.  The Committee shall have the discretion of whether any amount may be payable after the Committee has determined whether the Company Adjusted EBITDA Minimum has been satisfied.  No amount shall be payable if the Company Adjusted EBITDA Minimum is not satisfied.  In all events, any Award which becomes payable is subject to applicable withholding and other payroll taxes.  Any Award will be automatically forfeited if the Participant is not employed at the time of payment.  Notwithstanding the foregoing, a Participant who is on a Family and Medical Leave Act leave or Uniformed Services Employment and Reemployment Rights Act leave on the date of payment of the Award shall be treated as employed on said date.

 

Administration

 

The Committee shall have sole authority to determine whether any amount will be awarded under this Plan or under any Award issued under this Plan.  The Committee reserves the right to reduce or eliminate this Plan and any Award, including the determination to cancel an Award that may be granted hereunder at any time at its sole discretion. All decisions of the Committee shall be final and conclusive and without liability to any person.  The Committee may decide, at its sole discretion, that no amount may be paid hereunder should the Committee determine that the circumstances warrant either as a result of a Participant’s performance or other actions, or, with respect to the overall condition (financial or otherwise) of the Company.  No amount shall be set aside in a trust or otherwise segregated to fund the payment of any Award hereunder.

 

2


 

Adjustments Upon Certain Events

 

The Company Adjusted EBITDA Minimum is established with respect to the entities included in the Company’s consolidated financial statements as of December 28, 2010 (the “Company Group”) and the Company Adjusted EBITDA Minimum must be met by such Company Group and any divestitures shall not reduce or cause any adjustment to the Budget.  In the event any new properties or entities are acquired or added to the Company Group after December 28, 2010, the Committee may adjust the Budget with respect to each such added property or entities within 90 days of the closing of such acquisition in order to adjust the Company Adjusted EBITDA Minimum for the budgeted performance of such properties/entities.  In the event of any change in the Company or any of its Subsidiaries by reason of any sale, disposition, closing of a Club, spin-off, combination or any transaction or event similar to the foregoing with respect to the Company, a Subsidiary or any Club, or any other transaction or event determined by the Committee to be applicable, there shall be no adjustment to the Company Adjusted EBITDA Minimum or any Award under this Plan.   The Committee may, at its sole discretion and without liability to any person, adjust the Company Adjusted EBITDA Minimum to consider any new or added entities or Clubs, if any, as it deems appropriate at its sole discretion, including with respect to establishing performance factors and measures with respect to such addition, provided such performance features or measures are established within 90 days of the addition.

 

No Right to Employment or Awards; No Transferability of Awards

 

Information contained in this Plan and any other communications made by management do not constitute an implied or expressed contract or binding agreement between the Company and any Participant.   The granting of an Award shall impose no obligation on the Company or any Subsidiary to continue the employment of a Participant and shall not lessen or affect the Company’s or Subsidiary’s right to terminate the employment of such Participant.  No Participant or other person shall have any claim to be granted any Award or be vested in any Award at any time, and there is no obligation for uniformity of treatment of Participants.  No Participant or other person shall have any claim to any term of employment by reason of any Award or this Plan and all employment shall continue to be employment at will.  The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant (whether or not such Participants are similarly situated).  Any Award is not considered commissions of any type nor deferred compensation.  Any Award shall be personal to the Participant and is not assignable or subject to voluntary or involuntary alienation, sale or transfer by the Participant to any beneficiary or otherwise.

 

Amendments; Termination; Interpretation

 

Notwithstanding that the Company Adjusted EBITDA Minimum may have been met, the Committee reserves the right, at its sole discretion, to change, modify, alter or eliminate this Plan and any Award or payment which may be paid at any time.  Without limiting the generality of the foregoing, to the extent applicable, notwithstanding anything herein to the contrary, this Plan and any Awards granted hereunder shall be interpreted in accordance with the laws of the State of Texas, and, if applicable, Section 409A of the Internal Revenue Code and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued (“Section 409A”) .  Notwithstanding any provision herein to the contrary, in the event Section 409A is applicable to any Award issued hereunder and the Committee determines that any amounts which may be paid hereunder will be taxable to a Participant and not in compliance with Section 409A prior to payment to such Participant of such amount, the Company may (i) adopt such amendments and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of any Award paid hereunder and/or (ii) take such other actions as the Committee determines necessary or appropriate to comply with the requirements of Section 409A.

 

This document supersedes any prior agreements regarding the subject matter of this Plan, each of which is of no further force and effect.

 

Important Terminology

 

“Adjusted EBITDA” means EBITDA excluding certain items, including without limitation impairments and write-offs, changes in interest rate cap agreements, gains or losses due to discontinued or divested operations, or other similar events, and may be adjusted by the Committee at its sole discretion, including consideration of non-recurring events.

 

“Adjusted EBITDA Performance” means the Adjusted EBITDA results for the Company’s 2013 fiscal year as determined by the Committee and subject to final independent audit.

 

3


 

“Award” means the discretionary amount awarded to a Participant based upon the Participant’s Incentive Potential which may, in the Committee’s discretion, be paid to the Participant.

 

“Award Potential” means up to the dollar amount which the Participant may receive in an Award as stated in such Participant’s Long Term Incentive Plan participation letter. An Award Potential may be subject to such other terms and conditions as determined by the Committee at its sole discretion. The Award Potential may be modified from time-to-time by the Committee at its sole discretion.

 

“Budget” means the 2013 budgeted amount for Adjusted EBITDA Performance determined by the Committee for each Club, Region and/or the Company.

 

“Club” means a business, sports, golf or country Club of the Company or its Subsidiaries as determined by the Committee.

 

“Committee” means a Committee of the Board of Directors of the Company or designated by the Board of Directors of the Company.

 

“Company” means ClubCorp Club Operations, Inc., a Delaware corporation.

 

“Company Adjusted EBITDA Minimum” means the required Adjusted EBITDA Performance for Company’s 2013 fiscal year as stated in the Participant’s Long Term Incentive Plan Participation letter. Such amount shall be the same for all Participants, and is subject to adjustment as determined by the Committee, as set forth under “Adjustments Upon Certain Events.

 

“EBITDA” means earnings before interest, taxes, depreciation and amortization.

 

“Participant” means an employee of the Company or a Subsidiary who the Committee has designated to be eligible to receive an Award.

 

“Region” means the group of Clubs that the Participant is responsible for including the Participant’s home Club, if applicable, as determined by the Committee.

 

“Subsidiary” means a direct or indirect subsidiary of the Company as determined by the Committee.

 

Effective:  January 2011

 

4


 EX-10.8 377 a2202241zex-10_8.htm EX-10.8

Exhibit 10.8

 

 

$360,000,000

 

CREDIT AGREEMENT

 

Dated as of November 30, 2010

 

among

 

CCA CLUB OPERATIONS HOLDINGS, LLC
as Holdings

 

 

CLUBCORP CLUB OPERATIONS, INC.
as Borrower

 

 

CITICORP NORTH AMERICA, INC.
as Administrative Agent, Swing Line Lender and L/C Issuer

 

 

THE OTHER LENDERS PARTY HERETO

 

 

CITIGROUP GLOBAL MARKETS INC.
as Sole Arranger and Sole Bookrunner

 

 


 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE 1

DEFINITIONS AND ACCOUNTING TERMS

1

 

 

 

Section 1.01.

Defined Terms

1

Section 1.02.

Other Interpretive Provisions

44

Section 1.03.

Accounting Terms

45

Section 1.04.

Rounding

45

Section 1.05.

References To Agreements And Laws

45

Section 1.06.

Times Of Day

45

Section 1.07.

Timing Of Payment Or Performance

45

 

 

 

ARTICLE 2

THE COMMITMENTS AND CREDIT EXTENSIONS

46

 

 

 

Section 2.01.

The Loans

46

Section 2.02.

Borrowings, Conversions and Continuations of Loans

46

Section 2.03.

Letters Of Credit

48

Section 2.04.

Swing Line Loans

56

Section 2.05.

Prepayments

58

Section 2.06.

Termination or Reduction of Commitments

62

Section 2.07.

Repayment of Loans

63

Section 2.08.

Interest

63

Section 2.09.

Fees

64

Section 2.10.

Computation of Interest and Fees

64

Section 2.11.

Evidence of Indebtedness

65

Section 2.12.

Payments Generally

66

Section 2.13.

Sharing Of Payments

67

Section 2.14.

Incremental Facilities

68

Section 2.15.

Modification of Revolving Credit Loans

71

Section 2.16.

Defaulting Lenders

73

 

 

 

ARTICLE 3

TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

75

 

 

 

Section 3.01.

Taxes

75

Section 3.02.

Illegality

77

Section 3.03.

Inability To Determine Rates

77

Section 3.04.

Increased Cost And Reduced Return; Capital Adequacy; Reserves On Eurodollar Rate Loans

78

Section 3.05.

Funding Losses

79

Section 3.06.

Matters Applicable To All Requests For Compensation

79

Section 3.07.

Replacement Of Lenders Under Certain Circumstances

80

Section 3.08.

Survival

82

 

 

 

ARTICLE 4

CONDITIONS PRECEDENT

82

 

 

 

Section 4.01.

Conditions To Initial (Closing Date) Credit Extension

82

Section 4.02.

Conditions To All Credit Extensions

86

 

 

 

ARTICLE 5

REPRESENTATIONS AND WARRANTIES

87

 

 

 

Section 5.01.

Existence, Qualification And Power; Compliance with Laws

87

Section 5.02.

Authorization; No Contravention

87

 

i


 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 5.03.

Governmental Authorization; Other Consents; Liquor Licenses

87

Section 5.04.

Binding Effect

88

Section 5.05.

Financial Statements; No Material Adverse Effect

88

Section 5.06.

Litigation

89

Section 5.07.

Ownership of Property; Liens; Material Agreements

89

Section 5.08.

Environmental Compliance

90

Section 5.09.

Taxes

91

Section 5.10.

ERISA Compliance

91

Section 5.11.

Subsidiaries; Equity Interests

92

Section 5.12.

Margin Regulations; Investment Company Act

92

Section 5.13.

Disclosure

92

Section 5.14.

Intellectual Property; Licenses, Etc

93

Section 5.15.

Solvency

93

Section 5.16.

Perfection, Etc

93

Section 5.17.

Compliance with Laws Generally

93

Section 5.18.

Labor Matters

93

Section 5.19.

Senior Debt

94

Section 5.20.

Limitations on Holdings and Certain Subsidiaries

94

 

 

 

ARTICLE 6

AFFIRMATIVE COVENANTS

94

 

 

 

Section 6.01.

Financial Statements

95

Section 6.02.

Certificates; Other Information

96

Section 6.03.

Notices

97

Section 6.04.

Payment of Obligations; Material Agreements; Liquor Licenses

98

Section 6.05.

Preservation of Existence, Etc

99

Section 6.06.

Maintenance of Properties

99

Section 6.07.

Maintenance of Insurance

99

Section 6.08.

Compliance With Laws

99

Section 6.09.

Books and Records

99

Section 6.10.

Inspection and Appraisal Rights

99

Section 6.11.

Use of Proceeds

100

Section 6.12.

Covenant To Guarantee Obligations And Give Security

100

Section 6.13.

Control Accounts, Approved Deposit Accounts

102

Section 6.14.

Compliance with Environmental Laws

103

Section 6.15.

Further Assurances

103

Section 6.16.

Maintenance of Ratings

103

Section 6.17.

Designation of Subsidiaries

103

Section 6.18.

Post Closing Matters

105

 

 

 

ARTICLE 7

NEGATIVE COVENANTS

105

 

 

 

Section 7.01.

Liens

105

Section 7.02.

Investments

108

Section 7.03.

Indebtedness

111

Section 7.04.

Fundamental Changes

113

Section 7.05.

Dispositions

114

 

ii


 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 7.06.

Restricted Payments

116

Section 7.07.

Change In Nature of Business

118

Section 7.08.

Transactions With Affiliates

118

Section 7.09.

Burdensome Agreements

118

Section 7.10.

Financial Covenants

119

Section 7.11.

Amendments of Certain Documents

120

Section 7.12.

Accounting Changes

120

Section 7.13.

Prepayments, Etc. of Indebtedness

120

Section 7.14.

Limitations on Holdings and Certain Subsidiaries

120

Section 7.15.

Designated Senior Debt

121

Section 7.16.

Pension Plans

121

 

 

 

ARTICLE 8

EVENTS OF DEFAULT AND REMEDIES

121

 

 

 

Section 8.01.

Events of Default

121

Section 8.02.

Remedies upon Event of Default

123

Section 8.03.

Application Of Funds

124

 

 

 

ARTICLE 9

ADMINISTRATIVE AGENT AND OTHER AGENTS

125

 

 

 

Section 9.01.

Appointment and Authority

125

Section 9.02.

Rights as a Lender

126

Section 9.03.

Exculpatory Provisions

126

Section 9.04.

Reliance by Administrative Agent

127

Section 9.05.

Delegation of Duties

127

Section 9.06.

Resignation of Administrative Agent

128

Section 9.07.

Non-Reliance on Administrative Agent and Other Lenders

129

Section 9.08.

Collateral and Guaranty Matters

129

Section 9.09.

No Other Duties, Etc

130

Section 9.10.

Appointment of Supplemental Administrative Agents

131

Section 9.11.

Withholding Tax

131

 

 

 

ARTICLE 10

MISCELLANEOUS

132

 

 

 

Section 10.01.

Amendments, Etc

132

Section 10.02.

Notices and Other Communications; Facsimile Copies

134

Section 10.03.

No Waiver; Cumulative Remedies

135

Section 10.04.

Attorney Costs, Expenses and Taxes

135

Section 10.05.

Indemnification by the Borrower

136

Section 10.06.

Payments Set Aside

137

Section 10.07.

Successors and Assigns

137

Section 10.08.

Confidentiality

144

Section 10.09.

Setoff

145

Section 10.10.

Interest Rate Limitation

145

Section 10.11.

Counterparts

145

Section 10.12.

Integration

146

Section 10.13.

Survival of Representations and Warranties

146

Section 10.14.

Severability

146

 

iii


 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 10.15.

Tax Forms

146

Section 10.16.

GOVERNING LAW

148

Section 10.17.

WAIVER OF RIGHT TO TRIAL BY JURY

148

Section 10.18.

Binding Effect

148

Section 10.19.

USA PATRIOT Act Notice

149

Section 10.20.

No Advisory or Fiduciary Relationship

149

 

iv


 

SCHEDULES

 

 

 

Schedule I

Accounting Periods

Schedule II

Administrative Agent’s Office

Schedule III

Excluded Subsidiaries

Schedule IV

Ground Leases

Schedule V

Guarantors

Schedule VI

Surviving Indebtedness

Schedule VII

Local Counsel

Schedule 2.01(a)

Term B Commitment

Schedule 2.01(b)

Revolving Credit Commitment

Schedule 2.03(l)

Letters of Credit Issued Prior to the Closing Date

Schedule 4.01(a)(v)

Mortgaged Property

Schedule 5.03(b)

Liquor Licenses

Schedule 5.07(b)

Real Property

Schedule 5.07(c)

Unrecorded Ground Leases

Schedule 5.10(a)

ERISA Plans

Schedule 5.10(c)

ERISA Events

Schedule 5.11

Subsidiaries

Schedule 6.17

Dormant Subsidiaries

Schedule 6.18

Post Closing Matters

Schedule 7.01(b)

Existing Liens

Schedule 7.02(e)

Existing Investments

Schedule 7.02(p)

Existing Joint Venture Investments

Schedule 7.03(c)

Existing Indebtedness

Schedule 7.09

Burdensome Agreements

Schedule 10.02

Notices

 

 

EXHIBITS

 

 

A

Form of Committed Loan Notice

B

Form of Swing Line Loan Notice

C-1

Form of Term Note

C-2

Form of Revolving Credit Note

D

Form of Compliance Certificate

E

Form of Assignment and Assumption

F

Form of Guaranty and Security Agreement

G

Form of Joinder Agreement

H

Form of Administrative Questionnaire

I-1

Tax Status Certificate (For Non-U.S. Lenders that are not Partnerships For U.S. Federal Income Tax Purposes)

I-2

Tax Status Certificate (For Non-U.S. Lenders that are Partnerships For U.S. Federal Income Tax Purposes)

I-3

Tax Status Certificate (For Non-U.S. Participants that are not Partnerships For U.S. Federal Income Tax Purposes)

I-4

Tax Status Certificate (For Non-U.S. Participants that are Partnerships For U.S. Federal Income Tax Purposes)

J

Form of Affiliated Lender Assignment and Assumption

 


 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT (this “Agreement”) is entered into as of November 30, 2010, among CCA CLUB OPERATIONS HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), CLUBCORP CLUB OPERATIONS, INC., a Delaware corporation (together with any successors or assigns expressly permitted under Section 7.04 and Section 10.07, the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and CITICORP NORTH AMERICA, INC., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

PRELIMINARY STATEMENTS

 

The Borrower has requested that (a) on the Closing Date, the Term B Lenders make Term B Loans to the Borrower in an aggregate principal amount not to exceed $310,000,000 to satisfy certain Existing Indebtedness (as defined below) of Affiliates of the Borrower and terminate the commitments thereunder and (b) from time to time, the Revolving Credit Lenders lend to the Borrower and the L/C Issuer issue Letters of Credit for the account of the Restricted Subsidiaries under a $50,000,000 Revolving Credit Facility.

 

The applicable Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to so issue Letters of Credit, in each case, on the terms and subject to the conditions set forth in this Agreement.

 

In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto covenant and agree as follows:

 

ARTICLE 1

 

DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.01.          Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:

 

“Accepting Lender” has the meaning specified in Section 2.05(b)(vii).

 

“Accounting Period” means each of the periods during the Borrower’s Fiscal Year that constitutes a separate accounting period, as more particularly identified in Schedule I.

 

“Administrative Agent” means Citicorp North America, Inc., in its capacity as administrative agent under any of the Loan Documents, or any permitted successor administrative agent pursuant to Section 9.06.

 

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule II or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower, the Lenders and the L/C Issuers.

 

“Administrative Questionnaire” means an Administrative Questionnaire substantially in the form of Exhibit H.

 


 

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have corresponding meanings.

 

“Affiliated Lender” shall mean a Lender that is (a) the Sponsor or Affiliate of the Sponsor or (b) an Affiliate of any Loan Party (excluding, in each case, Holdings and any of its Subsidiaries).

 

“Affiliated Lender Assignment and Assumption Agreement” has the meaning specified in Section 10.07(i)(B).

 

“Agent-Related Person” means the Administrative Agent and any Supplemental Administrative Agent, together with their respective Affiliates, and the officers, directors, employees, advisors, agents and attorneys-in-fact of such Persons and Affiliates.

 

“Agents” means, collectively, the Administrative Agent and the Supplemental Administrative Agents (if any).

 

“Aggregate Commitments” means the Commitments of all the Lenders.

 

“Agreement” means this Credit Agreement.

 

“Applicable Rate” means a percentage per annum equal to:

 

(a)           with respect to Term B Loans, (i) for Eurodollar Rate Loans, 4.50% and (ii) for Base Rate Loans, 3.50%; and

 

(b)           with respect to the Revolving Credit Loans, unused Revolving Credit Commitments and Letter of Credit fees, (i) for Eurodollar Rate Loans, 4.50%, (ii) for Base Rate Loans, 3.50%, (iii) for Letter of Credit fees, 4.50% and (iv) for Revolving Credit Commitment Fees, the following percentages per annum, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02:

 

Revolving Credit Commitment Fee Rate

 

Pricing Level

 

Total Leverage Ratio

 

Revolving Credit
Commitment Fee Rate

1

 

> 3.00:1.00

 

0.75%

2

 

< 3.00:1.00

 

0.50%

 

Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02; provided that at the option of the Administrative Agent or the Required Revolving Lenders, Pricing Level 1 shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the Pricing Level otherwise

 

2


 

determined in accordance with this definition shall apply) and (y) as of the first Business Day after a Default or Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Default or Event of Default is cured or waived (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply); provided, further, that prior to delivery of the Compliance Certificate with respect to the first Fiscal Quarter beginning after the Closing Date, Pricing Level 1 shall apply.

 

In the event that the Administrative Agent or the Borrower determine that any financial statements previously delivered were incorrect or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall as soon as practicable deliver to the Administrative Agent the corrected financial statements for such Applicable Period, (ii) the Applicable Rate shall be determined as if the Pricing Level for such higher Applicable Rate were applicable for such Applicable Period, and (iii) the Borrower shall within three (3) Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional amount owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement.  This paragraph shall not limit the rights of the Administrative Agent and Lenders with respect to Section 2.08 and Article 8.

 

“Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.

 

“Approved Deposit Account” means a Deposit Account that is the subject of an effective Deposit Account Control Agreement and that is maintained by any Loan Party with a Deposit Account Bank.  “Approved Deposit Account” includes all monies on deposit in a Deposit Account and all certificates and instruments, if any, representing or evidencing such Deposit Account.

 

“Approved Domestic Bank” has the meaning specified in clause (c) of the definition of “Cash Equivalents.”

 

“Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

 

“Approved Securities Intermediary” means a “securities intermediary” or “commodity intermediary” (as such terms are defined in the UCC) selected or approved by the Administrative Agent.

 

“Arranger” means Citigroup Global Markets Inc. in its capacity as sole arranger and sole bookrunner for the Facilities.

 

“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E or in another form reasonably acceptable to the Administrative Agent.

 

3


 

“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel.

 

“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease or in respect of a Sale and Leaseback Transaction of any Person, the present value at the time of determination of the obligation of the lessee for net rental payments during the remaining term of such Capitalized Lease or the Lease included in such Sale and Leaseback Transaction, as applicable, including any period for which such Lease has been extended or may, at the option of the lessor, be extended.  Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

 

“Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).

 

“Available Amount” means, on any date of determination (the “Reference Date”), the sum of (without duplication):

 

(a)           $40,000,000; plus

 

(b)           Eligible Equity Proceeds (excluding an amount equal to the aggregate Equity Contribution) to the extent that such Eligible Equity Proceeds (i) are used within 90 days after the date on which such Eligible Equity Proceeds were received by the Borrower and (ii) are Not Otherwise Applied; plus

 

(c)           solely to the extent that the Total Leverage Ratio of Holdings and its Restricted Subsidiaries is less than 4.75:1.00 (after giving effect to the proposed (A) Restricted Payment made using the Available Amount pursuant to Section 7.06(d), (B) Investment made using the Available Amount pursuant to Section 7.02(h)(i) or Section 7.02(l) or (C) prepayment made using the Available Amount pursuant to Section 7.13(a), as applicable), the sum of (i) 50% of Excess Cash Flow for each Fiscal Year of the Borrower accrued during the period (treated as one accounting period) commencing with the Fiscal Year of the Borrower ended December 27, 2011 and ending with the most recent Fiscal Year of the Borrower for which financial statements of the Borrower have been delivered in accordance with Section 6.01 plus (ii) to the extent not included in the foregoing sub clauses of this clause (c), the aggregate amount of cash Returns to any Restricted Subsidiary in respect of Investments made pursuant to Section 7.02(l);

 

(d)           minus the aggregate amount of (A) Restricted Payments made using the Available Amount pursuant to Section 7.06(d), (B) Investments made using the Available Amount pursuant to Section 7.02(h)(i) and Section 7.02(l) and (C) prepayments made using the Available Amount pursuant to Section 7.13(a) during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date (without taking account of the intended usage of the Available Amount on such Reference Date).

 

“Bankruptcy Proceedings” has the meaning specified in Section 10.07(i)(iv).

 

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) 2.50% and (b) the rate of interest per annum determined from time to time by the Administrative Agent as its “prime rate” in effect at its principal office in New York City and (c) the Eurodollar Rate applicable for an Interest Period of one month beginning on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%.  The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s

 

4

 

costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such determined rate.  Any change in the Base Rate due to a change in the Federal Funds Rate or such “prime rate” shall be effective as of the opening of business on the effective day of such change in the Federal Funds Rate or “prime rate”, as the case may be.

 

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.

 

“Borrower” has the meaning specified in the introductory paragraph to this Agreement.

 

“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing, a Term Borrowing, or a New Term Borrowing, as the context may require.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in when used in relation to the Borrower, the state where the Administrative Agent’s Office is located, and if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

 

“Capital Expenditures” means, for any Person for any period, the aggregate of amounts that would be reflected as additions to property, plant or equipment on a consolidated balance sheet of such Person, excluding interest capitalized during construction.

 

“Capitalized Lease Obligation” means, for any Person at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at that time be required to be capitalized on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.

 

“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases on a balance sheet of the lessee.

 

“Cash Collateral Account” means any Deposit Account or Securities Account that is (a) established by the Administrative Agent from time to time in its sole discretion to receive cash and Cash Equivalents (or purchase cash or Cash Equivalents with funds received) from Holdings and its Restricted Subsidiaries or Persons acting on their behalf pursuant to the Loan Documents, (b) with such depositaries and securities intermediaries as the Administrative Agent may determine in its sole discretion, (c) in the name of the Administrative Agent (although such account may also have words referring to the Borrower and the account’s purpose), (d) under the control of the Administrative Agent and (e) in the case of a Securities Account, with respect to which the Administrative Agent shall be the Entitlement Holder and the only Person authorized to give Entitlement Orders with respect thereto.

 

“Cash Collateralize” means, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) to the Administrative Agent (for the benefit of the Lenders and/or, if applicable, the L/C Issuer) cash or deposit account balances as cash collateral in Dollars, in deposit accounts at a location designated by the Administrative Agent and under the sole dominion and control of the Administrative Agent pursuant to documentation in form and

 

5


 

substance reasonably satisfactory to the Administrative Agent and, if applicable, the L/C Issuer (which documents are hereby consented to by the Lenders).  “Cash Collateralization” has a corresponding meaning.

 

“Cash Equivalents” means any of the following types of Investments, to the extent owned free and clear of all Liens (other than Liens permitted pursuant to any Loan Document):

 

(a)           readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof, having maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;

 

(b)           direct obligations (or certificates representing an ownership interest in such obligations) of any state of the United States (including any agency or instrumentality thereof) the long-term debt of which is rated A-3 or higher by Moody’s and A- or higher by S&P (or rated the equivalent by at least one nationally recognized statistical rating organization) and having maturities of not more than six months after the date of acquisition;

 

(c)           time deposits with, or insured certificates or deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (ii) has combined capital and surplus of at least $5,000,000,000 or whose commercial paper rating is at least A-1 by S&P and P-1 by Moody’s (any such bank being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;

 

(d)           commercial paper and variable or fixed rate notes issued by or guaranteed by a domestic corporation (other than a commercial bank or financial institution) rated “A-1” (or the equivalent thereof) or better by S&P or “P-1” (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than one year from the date of acquisition thereof; and

 

(e)           Investments, classified in accordance with GAAP as current assets of Holdings or any Restricted Subsidiary, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $5,000,000,000, and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (a), (b), (c) and (d) of this definition of “Cash Equivalents”.

 

“Cash Management Obligations” means obligations owed by Holdings or any Restricted Subsidiary to any Lender or any Affiliate of a Lender in respect of any overdraft and liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds or in respect of any credit card or similar services.

 

“Casualty Event” means any event that gives rise to the receipt by any Person of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

 

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“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

 

“CERCLIS” means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the US Environmental Protection Agency.

 

“Change of Control” means the earliest to occur of

 

(a)           at any time prior to a Qualifying IPO, the Permitted Holders cease to, directly or indirectly, beneficially own (within the meaning of Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934, or any successor provision) Equity Interests representing more than 50% of the total voting power for the election of directors of Holdings;

 

(b)           at any time on or after a Qualifying IPO, (i) any Person or Persons (in each case, other than any Permitted Holder and any employee benefit plan of Holdings or any Restricted Subsidiary, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) that together constitute a “group” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of more than the greater of (x) thirty-five percent (35%) of the total voting power of all of the outstanding Equity Interests of Holdings for the election of the directors of Holdings and (y) the percentage of the total voting power of all of the outstanding Equity Interests of Holdings for the election of directors of Holdings owned, directly or indirectly, beneficially by the Permitted Holders, and (ii) during any period of twelve (12) consecutive months, the board of directors of Holdings shall cease to consist of a majority of the Continuing Directors;

 

(c)           the Borrower ceasing to be a directly or indirectly wholly owned Restricted Subsidiary of Holdings; or

 

(d)           any “Change of Control” (or any comparable term) in any documentation pertaining to any Material Indebtedness, the effect of which is to cause, or to permit the holders or holders of such Material Indebtedness to cause, with the giving of notice if required, such Material Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to the stated maturity of such Material Indebtedness.

 

“Claim” has the meaning specified in Section 10.07(i)(iv).

 

“Class” (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Credit Lenders, Term B Lenders or New Term Lenders, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Term B Commitments or New Term Commitments and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Credit Loans or Term Loans, in each case, under this Agreement as originally in effect or pursuant to Section 2.14 or 2.15, of which such Loan, Borrowing or Commitment shall be a part.

 

“Closing Date” means [                ], 2010 or, if later, the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01.

 

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“Code” means the US Internal Revenue Code of 1986, as amended from time to time.

 

“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to Liens in favor of the Administrative Agent, for the benefit of the Secured Parties pursuant to the Collateral Documents in order to secure the Secured Obligations.

 

“Collateral Documents” means, collectively, the Guaranty and Security Agreement, each Intellectual Property Security Agreement, the Mortgages, the Deposit Account Control Agreements, the Securities Account Control Agreements and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties as security for the Secured Obligations, including collateral assignments, security agreements, pledge agreements or other similar agreements and supplements thereto delivered to the Administrative Agent and the Secured Parties pursuant to Sections 4.01, 6.12 and 6.18.

 

“Commitment” means a Term Commitment or a Revolving Credit Commitment, as the context may require.

 

“Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other or (d) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.

 

“Commodity Account” has the meaning given to such term in the UCC.

 

“Company Materials” has the meaning specified in Section 6.02.

 

“Compensation Period” has the meaning specified in Section 2.12(c)(ii).

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit D.

 

“Consolidated” or “consolidated” means, unless otherwise expressly indicated, the consolidation of accounts of Holdings and its Subsidiaries (excluding all Unrestricted Subsidiaries) in accordance with GAAP.

 

“Consolidated Depreciation and Amortization Expense” means with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

 

“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:

 

(a)           increased, without duplication, by:

 

(i)            provision for taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus

 

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(ii)           total interest expense of such Person for such period (including (A) net losses or Hedging Obligations or other derivative instruments that are permitted pursuant to Section 7.03(h) and entered into for the purpose of hedging interest rate risk and (B) costs of surety bonds in connection with financing activities, in each case, to the extent included in total interest expense), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clause (a) thereof, in each case, to the extent the same was deducted (and not added back) in calculating such Consolidated Net Income; plus

 

(iii)          Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus

 

(iv)          any expenses or charges (other than depreciation or amortization expense) related to any issuance of Equity Interests, Investment permitted pursuant to Section 7.02, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred pursuant to Section 7.03 (whether or not successful), including (i) such fees, expenses or charges related to the offering of the Facilities and the Senior Notes and (ii) any amendment or other modification of the Facilities or the Senior Notes, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

 

(v)           the amount of any restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Closing Date and costs related to the closure and/or consolidation of facilities in an amount not to exceed (A) $500,000 in connection with any single acquisition, closure or consolidation and (B) $1,000,000 in the aggregate since the Closing Date; plus

 

(vi)          any other non-cash charges, including any write offs or write downs, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

 

(vii)         the amount of any non-controlling interest income or expense consisting of Subsidiary income or loss attributable to non-controlling equity interests of third parties in any non-wholly owned Restricted Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus

 

(viii)        the amount of management, monitoring, consulting and advisory fees and related expenses paid in such period to the Sponsor pursuant to Section 7.08(d); plus

 

(ix)           the amount of net cost-savings projected by the management of the Borrower in good faith to be realized as a result of specified actions initiated or to be taken on or prior to the date that is 12 months after any acquisition, merger or operational change permitted under this Agreement (calculated on a Pro Forma Basis as though such cost-savings had been realized on the first day of such period), net of the amount of

 

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actual benefits realized during such period from such actions; provided that (A) such cost-savings are reasonably identifiable and quantifiable, (B) no cost-savings shall be added pursuant to this clause (ix) to the extent duplicative of any expenses or charges relating to such cost-savings that are included in clause (v) above, and (z) the aggregate amount of cost-savings added pursuant to this clause (ix) shall not exceed (A) $3,000,000 in connection with any acquisition of a club and (B) $10,000,000 for any four consecutive quarter period on a Pro Forma Basis; plus

 

(x)            the amount of deferred revenue relating to Membership Deposit Liabilities that was written off in connection with the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006 which, but for such write-off, would have been recognized as revenue in such period; plus

 

(xi)           any costs or expense incurred by Holdings or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with Eligible Equity Proceeds and solely to the extent that such Net Cash Proceeds are excluded from the calculation of the Available Amount; plus

 

(xii)          the amount of expenses relating to payments made to option holders of any direct or indirect parent company of the Borrower or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Agreement; plus

 

(xiii)         fees and expenses of third parties retained by management of the Borrower in connection with preparing the Borrower to comply with the public filing requirements of the SEC and the Sarbanes-Oxley Act of 2002, as amended, and related rules and regulations, to the extent deducted in computing Consolidated Net Income; plus

 

(xiv)        any state or local property taxes, regulatory expenses or other charges directly resulting from (i) the reorganization Transactions described in the offering memorandum relating to the initial offering of the Senior Notes or (ii) the purchase of ClubCorp, Inc. by Fillmore CCA Holdings, Inc. on December 26, 2006; and

 

(b)           decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period;

 

provided that Consolidated EBITDA for the Fiscal Quarter ended on (i) September 7, 2010 shall be deemed to be $37,433,000, (ii) June 15, 2010 shall be deemed to be $41,876,000, (iii) March 23, 2010 shall be deemed to be $26,867,000 and (iv) December 29, 2009 shall be deemed to be $49,684,000.

 

“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:

 

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(a)           consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, other than with respect to Indebtedness borrowed under the Facilities or the Senior Notes, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit (including Letters of Credit) or bankers acceptances, (iii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP, (iv) the interest component of Attributable Indebtedness, and (v) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (i) interest expense relating to Membership Deposit Liabilities, (ii) accretion or accrual of discounted liabilities not constituting Indebtedness, (iii) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (iv) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and original issue discount with respect to Indebtedness under the Facilities,(v) any expensing of bridge, commitment and other financing fees and (vi) commissions, discounts, yield and other fees and charges (including any interest expense) related to any receivables facility); plus

 

(b)           consolidated capitalized interest (including interest with respect to Attributable Indebtedness as provided in the definition thereof) of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

 

(c)           interest income for such period.

 

“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that without duplication:

 

(a)           any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, severance, relocation costs and curtailments shall be excluded;

 

(b)           the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;

 

(c)           any after-tax effect of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded;

 

(d)           any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to Dispositions other than in the ordinary course of business, as determined in good faith by the management of the Borrower, shall be excluded;

 

(e)           the Net Income for such period of any Person that is not a Subsidiary, or that is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period;

 

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(f)            solely for the purpose of calculating the Excess Cash Flow for purposes of clause (c) of the definition of Available Amount, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not, at the date of determination, wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that “Consolidated Net Income” of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein;

 

(g)           effects of adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) in the property and equipment, software and other intangible assets, deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any consummated acquisition after the Closing Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded;

 

(h)           any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded;

 

(i)            any impairment charge, asset write-off or write-down, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded;

 

(j)            any (A) non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights and (B) income (loss) attributable to deferred compensation plans or trusts shall be excluded;

 

(k)           any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded;

 

(l)            accruals and reserves that are established, adjusted or changed as a result of the adoption or modification of accounting policies shall be excluded;

 

(m)          to the extent covered by insurance and actually reimbursed, expenses with respect to liability or casualty events or business interruption shall be excluded;

 

(n)           any net gain or loss resulting in such period from Hedging Obligations and the application of Financial Accounting Standards Codification No. 815—Derivatives and Hedging shall be excluded; and

 

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(o)           any net gain or loss resulting in such period from currency transaction or translation gain or losses related to currency re-measurements (including any net loss or gain resulting from hedge agreements for currency exchange risk) shall be excluded.

 

“Consolidated Scheduled Funded Debt Payments” means, as of any date for the applicable period ending on such date with respect to Holdings and its Restricted Subsidiaries, the sum of all scheduled payments of principal on Consolidated Total Debt made during such period (including the implied principal component of payments made on Capitalized Leases during such period) as determined in accordance with GAAP.

 

“Consolidated Senior Secured Debt” means, as of any date of determination, the aggregate principal amount of Consolidated Total Debt (including the aggregate face amount of all drawn and undrawn letters of credit (including Letters of Credit) that collateralize, backstop or otherwise provide credit support therefor) outstanding on such date that is secured by a Lien on any asset or property of any Loan Party or that is collateralized, backstopped or otherwise provided credit support by letters of credit (including Letters of Credit), whether drawn or undrawn.

 

“Consolidated Total Debt” means, as of any date of determination, (a) the aggregate stated balance sheet amount of Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date of the types described in clauses (a), (b) (to the extent of any reimbursement obligation that is unpaid), (c), (d), and (f) of the definition of “Indebtedness” at such date of determination and (b) all Indebtedness of the type described in clause (h) of the definition of “Indebtedness” at such date of determination to the extent it relates to the foregoing types of Indebtedness, in each case, as determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition) minus the lesser of (x) the aggregate amount of unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens other than nonconsensual Liens permitted under Section 7.01 and (y) $35,000,000.

 

“Consolidated Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.

 

“Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period; provided that there shall be excluded the effect of reclassification during such period of current assets to long term assets and current liabilities to long term liabilities, the effect of any Disposition or acquisition during such period, and the application of purchase accounting.

 

“Continuing Directors” shall mean the directors (or managers) of Holdings on the Closing Date and each other director (or manager), if, in each case, such other directors’ or managers’ nomination for election to the board of directors (or board of managers) of Holdings is endorsed by a majority of the then-Continuing Directors.

 

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

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“Control” has the meaning specified in the definition of “Affiliate.”

 

“Control Account” means a Securities Account or Commodity Account that is the subject of an effective Securities Account Control Agreement and that is maintained by any Loan Party with an Approved Securities Intermediary.  “Control Account” includes all Financial Assets held in a Securities Account or a Commodity Account and all certificates and instruments, if any, representing or evidencing the Financial Assets contained therein.

 

“Copyright Security Agreement” means the Copyright Security Agreement among the Borrower, the other grantors named therein and the Administrative Agent, dated as of the Closing Date.

 

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

 

“Current Assets” means, at any time, the consolidated current assets (other than cash, deferred income taxes and Cash Equivalents) of Holdings and its Restricted Subsidiaries.

 

“Current Liabilities” means, at any time, the consolidated current liabilities of Holdings and its Restricted Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long-term Indebtedness, (b) the current portion of any Capitalized Leases and (c) the current portion of deferred income taxes.

 

“Debt Issuance” means the issuance or incurrence by Holdings or any Restricted Subsidiary of any Indebtedness of the type specified in clause (a) of the definition of “Indebtedness”.

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, examinership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

“Declining Lender” has the meaning specified in Section 2.05(b)(vii).

 

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans that are Term Loans plus (c) 2.0% per annum; provided that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws.

 

“Defaulting Lender” means, at any time, as determined by the Administrative Agent in its sole discretion acting in good faith, a Lender as to which the Administrative Agent has notified the Borrower that (i) such Lender has failed for three or more Business Days to comply with its obligations under this Agreement to make a Term Loan, Revolving Credit Loan, make a payment to the L/C Issuer in respect of an L/C Obligation and/or make a payment to the Swing Line Lender in respect of a Swing Line Loan (each a “Lender Funding Obligation”), (ii) such Lender

 

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has notified the Administrative Agent, or has stated publicly, that it will not comply with any such Lender Funding Obligation hereunder, or has defaulted on its Lender Funding Obligations under any other loan agreement or credit agreement or other similar agreement (absent a good faith dispute), (iii) such Lender has, for three or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its Lender Funding Obligations hereunder, or (iv) a Lender Insolvency Event has occurred and is continuing with respect to such Lender; provided that in the case of each of clauses (i) through (iv) (inclusive) above, neither the reallocation of Lender Funding Obligations provided for in Section 2.16 as a result of a Lender’s being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated Lender Funding Obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender).  The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.

 

“Deposit Account” has the meaning given to such term in the UCC.

 

“Deposit Account Bank” means a financial institution selected or approved by the Administrative Agent.

 

“Deposit Account Control Agreement” has the meaning specified in the Guaranty and Security Agreement.

 

“Disposition” or “Dispose” means the sale, transfer, license, Lease or other disposition of any property by any Person (including any Sale and Leaseback Transaction and any sale of Equity Interests, but excluding any issuance by such Person of its own Equity Interests), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

 

“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date of the Term B Loan Facility.

 

“Dollar” and “$” mean lawful money of the United States.

 

“Domestic Subsidiary” means any Subsidiary of Holdings that is organized under the laws of the United States, any state thereof or the District of Columbia.

 

“Dormant Subsidiary” means each Non-Recourse Subsidiary listed on Schedule 6.17 on the Closing Date; provided that to the extent the Borrower elects to convert any such “Dormant Subsidiary” to a Restricted Subsidiary pursuant to Section 6.17, it shall cease to be a “Dormant Subsidiary”.

 

“DPO Agreement” means that certain letter agreement, dated as of November 9, 2010, among Citigroup Global Markets Realty Corp., Citicorp North America, Inc. and the “Borrower Parties” named therein.

 

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“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; (d) an Affiliated Lender to the extent permitted under Section 10.07(i); and (e) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Credit Commitment, the L/C Issuer and the Swing Line Lender, and (iii) in the case of any assignment of a Revolving Credit Commitment, unless a Default or Event of Default has occurred and is continuing under Section 8.01(a), Section 8.01(f) or Section 8.01(g) or would result therefrom, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that under no circumstances shall Holdings or any of its Subsidiaries (including Unrestricted Subsidiaries) or any of their respective Affiliates be an Eligible Assignee.

 

“Eligible Equity Proceeds” means the Net Cash Proceeds received by Holdings or any direct or indirect parent thereof from any sale or issuance of any Equity Interests (other than Disqualified Equity Interests) or from any capital contributions in respect of Equity Interests (other than Disqualified Equity Interests) to the extent such Net Cash Proceeds or capital contributions are directly or indirectly contributed to, and actually received by, the Borrower as cash common equity (or, if only a portion thereof is so contributed and received, to the extent of such portion).

 

“Entitlement Holder” has the meaning given to such term in the UCC.

 

“Entitlement Order” has the meaning given to such term in the UCC.

 

“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil and subsurface strata, and natural resources, such as wetlands, flora and fauna.

 

“Environmental Laws” means the common law and any and all applicable federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements, governmental restrictions or other legal requirements relating to pollution, the protection of the Environment or of public health (to the extent relating to exposure to Hazardous Materials) or the management, storage, treatment, transport, distribution or Release of any Hazardous Materials.

 

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Holdings or any Restricted Subsidiary arising from, resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or Release of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

 

“Equity Contribution” means investments in the form of cash common equity directly or indirectly in Holdings (or any parent company thereof) by the Sponsor that are contributed to the Borrower, together with the proceeds of the Resort Spin-Off received by the Borrower (or a Subsidiary Guarantor), in an aggregate amount that is not less than $425,000,000.

 

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“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).

 

“Equity Issuance” means any issuance by any Person to any other Person that is not a Loan Party of (a) its Equity Interests, (b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests.  A Disposition of Equity Interests shall not be deemed to be an “Equity Issuance”.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code solely for purposes of provisions relating to Section 412 of the Code).

 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the incurrence by the Borrower or any ERISA Affiliate of any liability with respect to a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due, upon the Borrower or any ERISA Affiliate or (g) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code and Section 302 of ERISA, whether or not waived, or the failure to make any contribution to a Multiemployer Plan.

 

“Eurodollar Rate” means, for any Interest Period with respect to any Eurodollar Rate Loan, the greater of: (a) 1.50% per annum and (b) (i) the rate per annum equal to the rate appearing on Reuters Page LIBOR01 (or any successor or substitute page of such Reuters service, or if the Reuters service ceases to be available, any successor to or substitute for such service providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time in consultation with the Borrower, for purposes of providing quotations of interest rates applicable to deposits in Dollars in the London interbank market) for delivery on the first day of such Interest Period with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, or (ii) if the rate referenced in the preceding clause (i) is not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in

 

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immediately available funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two (2) Business Days prior to the first day of such Interest Period.

 

“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the Eurodollar Rate.

 

“Event of Default” has the meaning specified in Section 8.01.

 

“Excess Cash Flow” means, with respect to any Fiscal Year of the Borrower on a consolidated basis, an amount equal to

 

(a)           the sum, without duplication, of (i) Consolidated EBITDA for such period and the Consolidated Working Capital Adjustment for such period, minus

 

(b)           the sum, without duplication, of:

 

(i)            Capital Expenditures (to the extent not financed by the incurrence of Indebtedness or an Equity Issuance) made by Holdings or any Restricted Subsidiary during such period;

 

(ii)           cash payments made by Holdings or any Restricted Subsidiary to satisfy tax obligations during such period;

 

(iii)          cash interest expense of Holdings or any Restricted Subsidiary during such period;

 

(iv)          Consolidated Scheduled Funded Debt Payments of Holdings and its Restricted Subsidiaries (including the amount of any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) but excluding (A) all other prepayments of Term Loans and (B) all prepayments of Revolving Credit Loans and Swing Line Loans, except to the extent there is an equivalent permanent reduction in commitments thereunder, except in each case to the extent such prepayments are financed with the proceeds of Debt Issuances (excluding the Revolving Credit Facility and any revolving lines of credit) or Equity Issuances;

 

(v)           cash payments by Holdings and its Restricted Subsidiaries during such period in respect of long-term liabilities (other than Indebtedness) to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated EBITDA, except to the extent financed with the proceeds of Debt Issuances (excluding the Revolving Credit Facility and any revolving lines of credit) or Equity Issuances; and

 

(vi)          Investments (including Permitted Acquisitions) paid in cash by Holdings or any Restricted Subsidiary during such period to the extent permitted by Section 7.02, except to the extent financed with the proceeds of Debt Issuances (excluding the Revolving Credit Facility and any revolving lines of credit) or Equity Issuances.

 

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“Excluded Assets” means, collectively:

 

(a)           any property or assets (including, without limitation, Liquor Licenses and other Permits, but excluding property and assets described in clause (b) of this definition of “Excluded Assets”) held by, or any contract entered into by, any Loan Party (other than contractual requirements entered into by a Loan Party to avoid guaranteeing or securing the Obligations) (i) that prohibits, or requires the consent, approval, license or authorization of any Person other than Holdings and its Affiliates as a condition to the creation by such Loan Party of a Lien on any right, title or interest in such property, asset, or contract or (ii) to the extent that any Law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibitions in the foregoing sub clauses (i) and (ii), to the extent that, and for as long as, such prohibition or other applicable requirement is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Law and so long as such negative pledge is otherwise permitted under Section 7.09;

 

(b)           Equity Interests (i) constituting margin stock, (ii) in (A) any Subsidiary that is not a wholly-owned Subsidiary or (B) a Joint Venture, in each case, that is in existence on the Closing Date, if the granting of a security interest in such Equity Interests would (x) be prohibited by organizational or governance documents of such Subsidiary or Joint Venture, (y) require consents from any Person other than Holdings and its Affiliates and such consent has not been obtained, or (z) would trigger a termination pursuant to any “change of control” or similar provision in such documents, or (iii) that are voting Equity Interests in any Restricted Subsidiary described in clause (c) of the definition of Excluded Subsidiary in excess of 66% (or in the case of Promociones Turísticas Profesionales, S.A. de C.V., CG Inversiones, S.A. de C.V. and CCG Club de Golf, S.A. de C.V., 65%) of the voting Equity Interests in such Restricted Subsidiary;

 

(c)           any intellectual property to the extent that the attachment of the security interest thereto, or any assignment thereof, would result in the forfeiture, invalidation or unenforceability of the grantors’ rights in such property including, without limitation, any license pursuant to which grantor is licensee under terms which prohibit the granting of a security interest or under which granting such an interest would give rise to a breach or default by grantor, any Trademark (as defined in the Guaranty and Security Agreement) applications filed in the USPTO on the basis of such grantor’s “intent-to-use” such Trademark, unless and until acceptable evidence of use of such Trademark has been filed with the USPTO pursuant to Section 1(c) or Section 1(d) of the Lanham Act (15 U.S.C. 1051, et seq.), to the extent that granting a lien in such Trademark application prior to such filing would adversely affect the enforceability or validity of such Trademark application; and

 

(d)           assets and property set forth on Schedule 7.05(m); provided that if such assets and property have not been Disposed of by the date that is 90 days after the Closing Date (as such date may be extended by the Administrative Agent in its sole discretion), the Restricted Subsidiaries owning such assets and property shall comply with the requirements of Section 6.12 with respect to such assets and property until the time of their Disposition pursuant to Section 7.05(m).

 

Notwithstanding the foregoing, “Excluded Assets” shall not include any proceeds, products, substitutions or replacements of “Excluded Assets” unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets.

 

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“Excluded Perfection Assets” means (a) any real property or real property interests (including leasehold interests) other than Material Real Property; (b) motor vehicles and other assets subject to certificates or title; (c) letter-of-credit rights (except to the extent constituting a supporting obligation for other Collateral as to which perfection of the security interest in such other Collateral is accomplished solely by the filing of a UCC financing statement); and (d) assets or property with respect to which, in the reasonable judgment of the Administrative Agent, the cost or other consequences of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

 

“Excluded Subsidiary” means (a) each Subsidiary listed on Schedule III; (b) any Subsidiary (other than any wholly-owned Subsidiary) in existence on the Closing Date that is prohibited by contractual requirements (other than contractual requirements entered into by such Subsidiary to avoid guaranteeing the Obligations) or applicable Law from guaranteeing the Obligations, in each case, for so long as such contractual requirements or applicable Law prevent the guarantee of the Obligations; (c) (i) any Foreign Subsidiary, (ii) any Domestic Subsidiary that is treated as a disregarded entity for U.S. federal income tax purposes and that has substantially no assets other than the Equity Interests of one or more Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the Code (“CFC”) or (iii) any Subsidiary for which the grant of a security interest in its property would reasonably be expected to cause material and adverse tax consequences to Holdings and its Restricted Subsidiaries; and (d) any Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, the cost or other consequences of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

 

“Excluded Taxes” means, with respect to any Agent, any Lender (including any L/C Issuer) or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document,

 

(a)           any Taxes imposed on or measured by its overall net income (however denominated) Taxes imposed on it in lieu of net income taxes by a jurisdiction as a result of such recipient being organized or resident in, maintaining a Lending Office in, doing business in or having another present or former connection with, such jurisdiction (other than a business or connection deemed to arise solely by virtue of the Loan Documents or any of the transactions contemplated thereby);

 

(b)           any United States federal withholding tax that is imposed pursuant to any Law in effect at the time such recipient becomes a party to this Agreement, except to the extent such Lender’s assignor (if any) was entitled, immediately prior to the assignment to payments in respect of United States federal withholding tax under Section 3.01(a) or (c);

 

(c)           any Taxes attributable to a recipient’s failure or comply with Section 10.15(a) or (b); or

 

(d)           any United States federal withholding taxes under current Sections 1471 through 1474 of the Code, or any amended version or successor provision that is substantively comparable thereto, and, in each case, any regulations promulgated thereunder and any interpretation or other guidance issued in connection therewith.

 

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“Existing Indebtedness” means the indebtedness of (i) Clubcorp Mortgage Borrower, LLC, Fillmore BC REIT Mortgage, LLC and Fillmore Homestead REIT Mortgage, LLC pursuant to that certain Loan Agreement, dated as of December 26, 2006, with Citigroup Global Markets Realty Corp. and (ii) Clubcorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC, Fillmore Homestead REIT Mezzanine, LLC pursuant to that certain Mezzanine Loan and Revolving Credit Facility, dated as of December 26, 2006, with Citigroup Global Markets Realty Corp.

 

“Facility” means the Term Loan Facility, the Revolving Credit Facility, the Swing Line Sublimit or the Letter of Credit Sublimit, as the context may require.

 

“Fair Market Value” means, with respect to any asset or group of assets at any date, the value of the consideration obtainable in a sale of such asset at such date assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by (a) the Borrower’s management, if the value of such asset or group of assets is less than or equal to $5,000,000, (b) the Board of Directors of the Borrower if the value of such asset or group of assets is more than $5,000,000 or (c) if such asset or group of assets shall have been the subject of a relatively contemporaneous appraisal by an independent third party appraiser, the basic assumptions underlying which have not materially changed since its date, the value set forth in such appraisal.

 

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately  preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

 

“Fee Letter” means any letter agreement from time to time in effect between any Agent and any Loan Party with respect to certain fees to be paid from time to time to such Agent in respect of the Facilities, together with such other terms and conditions in respect of the Facilities as may be agreed between the applicable Agent and such Loan Party or Loan Parties.

 

“Financial Asset” has the meaning given to such term in the UCC.

 

“Fiscal Quarter” means each of the following periods:  (i) The first (1st) through the third (3rd) Accounting Periods (inclusive) of any Fiscal Year; (ii) the fourth (4th) through the sixth (6th) Accounting Periods (inclusive) of any Fiscal Year; (ii) the seventh (7th) through the ninth (9th) Accounting Periods (inclusive) of any Fiscal Year; and (iv) the tenth (10th) through the thirteenth (13th) Accounting Periods (inclusive) of any Fiscal Year, with the exception of Fiscal Year 2013 which will include the tenth (10th) through the fourteenth (14th) Accounting Periods (inclusive).

 

“Fiscal Year” means the period of time commencing upon the first day of the first Accounting Period during any calendar year and ending on the last day of the last Accounting Period of such calendar year.

 

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“Foreign Plan” means any employee pension benefit plan (other than a governmental plan or arrangement) which is maintained or contributed to by any Restricted Subsidiary primarily for their employees employed outside the United States and is subject to any Laws requiring contributions or other funding of benefits under such plan, including, without limitation, upon any termination, wind up or withdrawal with respect to such plan.

 

“Foreign Subsidiary” means any Subsidiary of Holdings that is not a Domestic Subsidiary.

 

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

 

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

 

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

“Granting Lender” has the meaning specified in Section 10.07(g).

 

“Ground Lease” means each ground Lease, in existence on the Closing Date, listed on Schedule IV.

 

“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or Lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in

 

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either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

 

“Guarantors” means, collectively, (a) Holdings and each of its Subsidiaries listed on Schedule V that, as of the Closing Date, shall have Guaranteed the Obligations of the Borrower pursuant to the Guaranty and Security Agreement and (b) each other Restricted Subsidiary of Holdings that shall be required to become a Guarantor pursuant to Section 6.12.

 

“Guaranty and Security Agreement” means the Guaranty and Security Agreement made by the Guarantors in favor of the Secured Parties, substantially in the form of Exhibit F, together with each supplement or joinder thereto in respect of the Obligations of the Borrower delivered pursuant to Section 6.12.

 

“Hazardous Materials” means all substances, materials, wastes, chemicals, pollutants, contaminants, constituents or compounds, in any form, regulated, or which can give rise to liability, under any Environmental Law, including petroleum or petroleum distillates, asbestos or asbestos-containing materials and polychlorinated biphenyls.

 

“Hedge Bank” means the counterparty to any Loan Party under a Secured Hedge Agreement.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under any interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies, in each case, to the extent permitted pursuant to Section 7.03(h).

 

“Holdings” has the meaning specified in the introductory paragraph to this Agreement.

 

“Honor Date” has the meaning specified in Section 2.03(c)(i).

 

“IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

“Increased Amount Date” has the meaning specified in Section 2.14(a).

 

“Increased Revolving Credit Commitments” has the meaning specified in Section 2.14(a).

 

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the

 

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maximum amount of all letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person; (c) net obligations of such Person under any Swap Contract (it being understood that the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date); (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business that are not overdue and liabilities associated with customer prepayments and deposits); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) all Attributable Indebtedness; (g) all obligations of such Person in respect of Disqualified Equity Interests; and (h) all Guarantees of such Person in respect of any of the foregoing.

 

“Indemnified Liabilities” has the meaning specified in Section 10.05.

 

“Indemnitees” has the meaning specified in Section 10.05.

 

“Information” has the meaning specified in Section 10.08.

 

“Intellectual Property Security Agreement” means, collectively, the Patent Security Agreement, the Trademark Security Agreement and the Copyright Security Agreement, substantially in the forms attached to the Guaranty and Security Agreement together with each other intellectual property security agreement executed and delivered pursuant to Section 6.12 or the Guaranty and Security Agreement.

 

“Interest Coverage Ratio” means, as of the end of any Fiscal Quarter of the Borrower for the Test Period ending on such date, the ratio of (a) Consolidated EBITDA for such Test Period to (b) Consolidated Interest Expense for such Test Period.

 

“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.

 

“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, or with the consent of all relevant Lenders, nine or twelve months thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:

 

(a)           any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;

 

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(b)           any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c)           no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.

 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (h) of the definition of “Indebtedness” set forth in this Section 1.01 in respect of such Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any Returns in respect of such Investment.  For purposes of this definition, in the case of intercompany Investments resulting from cash management and concentration among Holdings and its Subsidiaries in the ordinary course of business consistent with past practice, the aggregate amount of such Investment made at any time by the Loan Parties in other Subsidiaries that are not Loan Parties shall be deemed to be the aggregate amount owed to the Loan Parties by such other Subsidiaries less the aggregate amount owed by the Loan Parties to such other Subsidiaries.

 

“IP Rights” has the meaning specified in Section 5.14.

 

“IRS” means the United States Internal Revenue Service.

 

“Joinder Agreement” means an agreement substantially in the form of Exhibit G.

 

“Joint Venture” means any Person in whom any Restricted Subsidiary beneficially owns any Equity Interest that is not a Subsidiary.

 

“Jurisdictional Requirements” has the meaning specified in Section 7.04(a).

 

“KSL” means KSL Capital Partners II GP, LLC.

 

“KSL Investment Vehicle” means any investment vehicle Controlled by or under common Control with KSL or its Affiliates.

 

“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.

 

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.

 

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“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

 

“L/C Issuer” means Citicorp North America, Inc., in its capacity as issuer of Letters of Credit hereunder and each other Revolving Credit Lender reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed) that has entered into an agreement (in form and substance satisfactory to the Administrative Agent and the Borrower) with the Administrative Agent to be bound by the terms applicable to an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

 

“L/C Obligations” means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including, without duplication, all L/C Borrowings.

 

“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Term Loan or any New Term Commitment.

 

“Laws” means, collectively, all applicable international, foreign, Federal, state, commonwealth and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

“Lease” means any lease, license, letting, concession, occupancy agreement, or sublease to which any Restricted Subsidiary is granted a possessory interest in, or right to use or occupy all or any portion of any space in any real or personal property, and every modification or amendment thereof, excluding (i) short-term agreements in the ordinary course of business pursuant to which hotel rooms and facilities are made available to individual hotel guests and other customers and guests and (ii) Liquor License Arrangements.

 

“Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, includes the L/C Issuer and the Swing Line Lender.

 

“Lender Funding Obligation” has the meaning specified in the definition of “Defaulting Lender.”

 

“Lender Insolvency Event” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Revolving Credit Lender or its Parent Company, or such Revolving Credit Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender-Insolvency Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interest in any Revolving Credit Lender or its Parent Company by a Governmental Authority or an instrumentality thereof.

 

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“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

 

“Letter Agreement” means that certain letter agreement, dated November 9, 2010, among Citigroup Global Markets Inc., the “Company Parties” named therein and KSL Capital Partners Management II, LLC.

 

“Letter of Credit” means any letter of credit issued hereunder.  A Letter of Credit may be a commercial letter of credit (if available to be issued by the applicable L/C Issuer) or a standby letter of credit.

 

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit substantially in the form from time to time in use by the L/C Issuer.

 

“Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).

 

“Letter of Credit Sublimit” means $30,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).

 

“Liquor License Arrangement” means any license, concession or other agreement or arrangement by which any Person that holds a Liquor License is afforded one or more rights with respect to any one or more of properties in connection with the provision of alcohol thereon.

 

“Liquor Licenses” means collectively, the licenses set forth on Schedule 5.03(b) and each other license issued by a state or local agency.

 

“Loan” means an extension of credit by a Lender (x) to the Borrower in the form of a Term Loan or a New Term Loan and (y) to the Borrower in the form of a Revolving Credit Loan or a Swing Line Loan.

 

“Loan Documents” means, collectively, this Agreement, the Notes, the Guaranty and Security Agreement, any Fee Letter, the DPO Agreement, the Letter Agreement, the other Collateral Documents and each Letter of Credit Application.

 

“Loan Parties” means, collectively, Holdings, the Borrower and each Subsidiary Guarantor.

 

“Management Agreement” means that certain investment management agreement dated as of December 26, 2006 among KSL Advisors, LLC, Fillmore CCA Holdings I, LLC, Fillmore

 

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CCA Holdings, Inc. and Clubcorp, Inc., as in effect on the Closing Date and as such investment management agreement may be amended, modified, supplemented, restated, replaced or substituted so long as such amendment, modification, supplement, restatement, replacement or substitution is in a manner not materially disadvantageous to the Lenders, when taken as a whole, as compared to the Management Agreement in effect on the Closing Date, as determined in the good faith judgment of a majority of the disinterested members of the board of directors of the Borrower.

 

“Material Adverse Effect” means (a) a material adverse effect on the business, operations, assets or financial condition of Holdings and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to pay the Obligations under any Loan Document or (c) a material adverse effect on the rights and remedies of the Lenders, taken as a whole, under the Loan Documents.

 

“Material Agreement” means each Contractual Obligation or series of related Contractual Obligations (other than (x) any Contractual Obligation that ceases to be in effect with respect to Holdings and its Restricted Subsidiaries after giving effect to, and concurrently with, the Transactions and (y) that certain Procurement Services Agreement between Avendra, LLC and Clubcorp, Inc., dated as of January 1, 2007, to the extent that such agreement terminates in accordance with its own terms, except due to a breach by Holdings or a Restricted Subsidiary) that (a) relates to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of any of the Material Real Properties, or otherwise imposes obligations on Holdings or any of its Restricted Subsidiary (including Leases and Ground Leases), under which Holdings or any of its Restricted Subsidiary pays, performs or otherwise provides consideration in an aggregate amount that exceeds $2,500,000 in any Fiscal Year and (b) pursuant to which Holdings or any of its Restricted Subsidiaries manages any golf club or non-golf club (i.e., business and sporting club) business for which Holdings or such Restricted Subsidiary or its Affiliates receive $2,500,000 or more in gross aggregate consideration in any Fiscal Year.

 

“Material Indebtedness”  means Indebtedness of Holdings or any Restricted Subsidiary having (a) an outstanding aggregate principal amount or (b) outstanding commitments, in either case, in an amount of $25,000,000 or more.

 

“Material Intellectual Property” means all registrations or pending applications for registration with the US Patent and Trademark Office for any trademarks or service marks that are material to the operation of the business of Holdings and its Restricted Subsidiaries, taken as a whole.

 

“Material Lease” means (i) the Ground Leases and (ii) any Lease of real property that constitutes Material Real Property.

 

“Material Real Property” means (a) the real property described in clause (a) of the definition of Mortgaged Property and (b) fee owned real property and Leases of real property located in the United States with a Fair Market Value (or, if agreed to by the Administrative Agent in its sole discretion, a tax-assessed value) equal to or greater than $1,500,000.

 

“Maturity Date” means (a) with respect to the Revolving Credit Facility, the date that is five (5) years after the Closing Date and (b) with respect to the Term B Loan Facility, the date that is six (6) years after the Closing Date; provided that the reference to Maturity Date with

 

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respect to Revolving Credit Commitments and Revolving Loans whose maturity has been extended pursuant to Section 2.15 shall be the Revolving Maturity Date.

 

“Maximum Rate” has the meaning specified in Section 10.10.

 

“Membership Deposit Liabilities” means those amounts paid to any Subsidiary by any club member that such Subsidiary is obligated to refund to such member in accordance with the applicable club membership agreement.

 

“Membership Report” means, during the applicable period, a membership report for such period (together with year-to-date summaries of such information) showing (i) the number of memberships sold, (ii) the revenues (gross and net) from the sale of such memberships and (iii) the amount of such revenues that are Membership Deposit Liabilities and refundable in future years and the date of eligibility for such refund.  For purposes of the Company Materials described in Section 6.02, no “Membership Report” shall be suitable for Public Lenders and shall be suitable only for posting on a portion of the Platform designated “Private Investor”.

 

“MNPI” has the meaning specified in Section 10.07(i)(A).

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

“Mortgage” means, collectively, the deeds of trust, deeds of mortgage, trust deeds or mortgages, as applicable, made by any Loan Party in favor or for the benefit of the Administrative Agent on behalf of the Secured Parties in respect of Material Real Property in form and substance reasonably acceptable to the Administrative Agent executed and delivered pursuant to Section 6.12.

 

“Mortgage Requirement” means, with respect to any Material Real Property owned by any Loan Party, (a) provision of (i) a policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each Mortgage as a first priority Lien on the Material Real Property described therein, subject only to Permitted Prior Liens, and free of other Liens except Liens that are junior in priority to the Lien of the Administrative Agent secured by such Mortgage that are otherwise permitted pursuant to Section 7.01 and (ii) a Mortgage executed by any Loan Party in recordable form and otherwise in form and substance reasonably acceptable to the Administrative Agent; (b) recording of such Mortgage in the land records of the county in which such Material Real Property to be so encumbered is located; (c) acquisition of standard flood hazard determinations for such Material Real Property, and if such Material Real Property is determined to be in a special flood zone, delivery of evidence of flood insurance in compliance with the requirements of the National Flood Insurance Program; (d) a local counsel opinion as to the enforceability of such Mortgage in the state in which the Material Real Property described in such Mortgage is located in form and substance reasonably acceptable to the Administrative Agent; and (e) a title survey in form and substance reasonably satisfactory to the Administrative Agent for each Material Real Property and, with respect to Material Real Property acquired after the Closing Date, certified to the Borrower or the applicable Restricted Subsidiary, the title company issuing the title insurance policy, the Administrative Agent and their respective successors and assigns.

 

“Mortgaged Property” means (a) on the Closing Date, the real property of the Loan Parties subject to a Mortgage that is set forth on Schedule 4.01(a)(v) and (b) thereafter, each other

 

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Material Real Property of any Loan Party that becomes subject to a Mortgage pursuant to Section 6.12.

 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Holdings or a Restricted Subsidiary or any of its ERISA Affiliates has any obligation or liability, contingent or otherwise.

 

“Net Cash Proceeds” means:

 

(a)           with respect to any Disposition or any Casualty Event, in each case, by any Person (other than a Non-Prepayment Unrestricted Subsidiary), the difference, if any, of:

 

(i)            the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event; provided that (A) to the extent included in the calculation of Excess Cash Flow for the applicable period, business interruption insurance proceeds or similar payments shall be excluded, (B) any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise shall be included, but only as and when so received and (C) with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of any Loan Party; minus

 

(ii)           the sum of (A) the principal amount, together with any applicable premium, penalty, interest and breakage costs, of any Indebtedness (other than the Obligations) that is secured by the assets being Disposed of or with respect to which such Casualty Event has occurred, in each case, to the extent that (x) with respect to Holdings or any Restricted Subsidiary, such Indebtedness and such Lien are permitted pursuant to Sections 7.03 and 7.01, respectively and (y) such Indebtedness is required by its terms to be repaid in connection with such Disposition or Casualty Event, (B) the reasonable out-of-pocket expenses (including, without limitation, attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by such Person in connection with such Disposition or Casualty Event, (C) taxes (or distributions for taxes) paid or reasonably estimated to be payable in connection therewith by such Person and attributable to such Disposition or Casualty Event (including, in respect of any proceeds received in connection with a Disposition or Casualty Event of any asset of any Foreign Subsidiary, deductions in respect of withholding taxes that are payable in cash if such funds are repatriated to the United States); (D) any reasonably estimated reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by any Person after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, and it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents (i) received upon the Disposition of any non-cash consideration received by any Subsidiary that is not a Non-Prepayment Unrestricted Subsidiary in respect of any such Disposition or Casualty Event and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or, if such liabilities have not been satisfied

 

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in cash and such reserve not reversed within one hundred and eighty (180) days after such Disposition or Casualty Event, the amount of such reserve.

 

Notwithstanding the foregoing, for purposes of this clause (a), (i) proceeds from Dispositions permitted under clauses (a), (b), (c), (d), (e), (g) or (k) of Section 7.05 (or, in the case of a Prepayment Unrestricted Subsidiary, Dispositions of the type that would be permitted by such clauses if otherwise applicable thereto) shall not be included in the calculation of Net Cash Proceeds and (ii) (x) no proceeds realized by Holdings and its Restricted Subsidiaries in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such proceeds shall exceed $2,500,000 in the aggregate and (y) no proceeds realized by Holdings and its Restricted Subsidiaries shall constitute Net Cash Proceeds in any Fiscal Year of the Borrower until the aggregate amount of all such proceeds in such Fiscal Year shall exceed $5,000,000 (and thereafter only proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); provided that the exclusions to Net Cash Proceeds under clause (ii) above shall not be applicable to proceeds realized by any Prepayment Unrestricted Subsidiary.

 

(b)           with respect to Equity Issuance by any Person (other than a Non-Prepayment Unrestricted Subsidiary), the excess of (i) the sum of the cash and Cash Equivalents received in connection with such Equity Issuance over (ii) all taxes and reasonable fees (including investment banking fees, underwriting discounts, commissions, costs and other reasonable out-of-pocket expenses (including attorneys’ fees) and other customary expenses) incurred by such Person in connection with such Equity Issuance; and

 

(c)           with respect to the incurrence or issuance of any Indebtedness by any Person (other than a Non-Prepayment Unrestricted Subsidiary), the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the reasonable investment banking fees, underwriting discounts, commissions, costs and other reasonable out-of-pocket expenses (including attorneys’ fees) and other customary expenses, incurred by such Person in connection with such incurrence or issuance (including, in the case of Indebtedness of any Foreign Subsidiary, deductions in respect of withholding taxes that are payable in cash if such funds are repatriated to the United States).

 

“Net Income” means, with respect to any Person, the net income (or loss) of such Person, determined in accordance with GAAP.

 

“New Revolving Credit Lender” has the meaning specified in Section 2.14(a).

 

“New Term Borrowing” means a borrowing consisting of simultaneous New Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the New Term Lenders pursuant to Section 2.14.

 

“New Term Commitments” has the meaning specified in Section 2.14(a).

 

“New Term Lender” has the meaning specified in Section 2.14(a).

 

“New Term Loans” has the meaning specified in Section 2.14(c).

 

“New Term Note” means, for each Class of New Term Loans, a promissory note in substantially the form of Exhibit C-1 with, subject to Section 2.14, such changes as shall be agreed to by the Borrower and the New Term Lenders providing such Class of New Term Loans

 

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and reasonably satisfactory to Administrative Agent, as it may be amended, restated, supplemented or otherwise modified from time to time.

 

“Non-Consenting Lender” has the meaning specified in Section 3.07(d).

 

“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.

 

“Non-Excluded Taxes” means any Taxes other than Excluded Taxes.

 

“Non-Prepayment Unrestricted Subsidiary” means an Unrestricted Subsidiary, formed after the Closing Date, that owns no assets or property that were owned by Holdings or its Subsidiaries on the Closing Date (and with respect to Equity Interests owned by it, the issuer of such Equity Interests was not in existence on the Closing Date).

 

“Non-Recourse Indebtedness” means Indebtedness or that portion of Indebtedness as to which neither Holdings nor its Recourse Subsidiaries (A) provide credit support (including any undertaking, agreement or instrument which would constitute Indebtedness), (B) is directly or indirectly liable or (C) constitute the lender or purchaser.

 

“Non-Recourse Subsidiary” means any Subsidiary of Holdings that (a) has no Indebtedness other than Non-Recourse Indebtedness; (b) is not party to any agreement, contract, arrangement or understanding with Holdings or any Recourse Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to Holdings or such Recourse Subsidiary than those that might be obtained at the time such transaction is entered into from Persons who are not Affiliates of Holdings; it being understood that agreements, contracts, arrangements or understandings that apply generally to Holdings and its Subsidiaries on a company-wide basis, and that are no more favorable to the Unrestricted Subsidiaries than to Restricted Subsidiaries, shall not, in and of themselves, disqualify a Subsidiary from being a “Non-Recourse Subsidiary”; (c) is a Person with respect to which neither the Holdings nor any of the Recourse Subsidiaries has any direct or indirect obligation to (i) subscribe for additional Equity Interests or warrants, options or other rights to acquire Equity Interests or (ii) maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and (d) does not guarantee or otherwise provide credit support after the time of such designation for any Indebtedness of Holdings or any of its Recourse Subsidiaries.  If, at any time, any Non-Recourse Subsidiary would fail to meet the foregoing requirements as a Non-Recourse Subsidiary, it shall thereafter cease to be a Non-Recourse Subsidiary for purposes of this Agreement.

 

“Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).

 

“Non-US Lender” has the meaning specified in Section 10.15(a).

 

“Not Otherwise Applied” means, with reference to any amount of Net Cash Proceeds of any transaction or event or of Excess Cash Flow, that such amount (i) was not required to be applied to prepay the Loans pursuant to Section 2.05(b), and (ii) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on the receipt or availability of such amount.

 

“Note” means a Term Note, a New Term Note, a Revolving Credit Note or a New Revolving Credit Note, as the context may require.

 

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“NPL” means the National Priorities List under CERCLA.

 

“Obligations” means (a) for purposes of this Agreement, all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding and (b) for purposes of the Guaranty and Security Agreement and the other Collateral Documents, (x) all “Obligations” as defined in clause (a) above, (y) all Secured Hedge Obligations and (z) all Cash Management Obligations.  Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.

 

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or the memorandum and articles of association (if applicable); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

“Other Taxes” has the meaning specified in Section 3.01(b).

 

“Outstanding Amount” means (a) with respect to the Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount thereof on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

 

“Parent Company” means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the economic or voting Equity Interests of such Lender.

 

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“Participant” has the meaning specified in Section 10.07(d).

 

“Participant Register” has the meaning specified in Section 10.07(d).

 

“Patent Security Agreement” means the Patent Security Agreement among the Borrower, the other grantors named therein and the Administrative Agent, dated as of the Closing Date.

 

“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into Law October 26, 2001)).

 

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and to which Holdings or any Restricted Subsidiary or its ERISA Affiliate has any obligation or liability, contingent or otherwise.

 

“Permit” means any license, permit, authorization, approval, variance, permission or certificate used in connection with the ownership, operaion, use or occupancy of any Material Real Property (including Liquor Licenses, certificates of occupancy, business licenses, state health department licenses, licenses to conduct business and all such other permits, licenses and rights, obtained from any Governmental Authority or private Person concerning ownership, operation, use or occupancy of any Material Real Property).

 

“Permitted Acquisition” has the meaning specified in Section 7.02(h).

 

“Permitted Holders” means the Sponsor.

 

“Permitted Prior Liens” means Liens having priority senior to the Liens in favor of the Administrative Agent pursuant to the Loan Documents that are permitted pursuant to Section 7.01 (b), (c), (d), (g), (i), (j), (k), (l), (p), (r) and (s).

 

“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement, exchange or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed, replaced, exchanged or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement, exchange or extension and by an amount equal to any existing commitments unutilized thereunder and as otherwise permitted to be incurred or issued pursuant to Section 7.03; (b) such modification, refinancing, refunding, renewal, replacement, exchange or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended; (c) if the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended is contractually subordinated in right of payment to the Obligations, such modification,

 

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refinancing, refunding, renewal or extension is contractually subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended, taken as a whole, (d) such modification, refinancing, refunding, renewal, replacement, exchange or extension is incurred by the Person or Persons who are the obligors on the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended or who would otherwise be permitted to incur such Indebtedness (including any guarantees thereof pursuant to Section 7.02 and Section 7.03); (e) if such modification, refinancing, refunding, renewal, replacement, exchange or extension is secured Indebtedness, the Liens securing such refinancing Indebtedness are limited to Liens on assets or property that secured the Indebtedness being refinanced without any change in the class or category of assets or property subject to such Lien; and (f) at the time thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom.

 

“Permitted Subordinated Indebtedness” means any unsecured Indebtedness of Holdings or the Borrower that (a) is on terms and conditions (including as to covenants) customary for subordinated notes issued under Rule 144A of the Securities Act, expressly subordinated to the prior payment in full in cash of the Obligations on terms and conditions (including as to covenants) customary for “high-yield” senior subordinated notes issued under Rule 144A of the Securities Act, (b) is not scheduled to mature prior to the date that is ninety-one (91) days after the Latest Maturity Date, (c) has no scheduled amortization or payments of principal (other than customary offers to purchase) prior to the date that is ninety-one (91) days after the Latest Maturity Date, and (d) has no material covenant, default (including with respect to “change of control”) and remedy provisions that are more expansive in scope, or mandatory prepayment, repurchase or redemption provisions that are more expansive in scope, in each case than those set forth in the Senior Notes Indenture (other than as would customarily be contained in senior subordinated debt securities).

 

“Permitted Unsecured Indebtedness” means any unsecured Indebtedness of Holdings or the Borrower that (a) (i) is on terms and conditions (including as to covenants) customary for senior notes issued under Rule 144A of the Securities Act, (ii) is not scheduled to mature prior to the date that is ninety-one (91) days after the Latest Maturity Date, (iii) has no scheduled amortization or payments of principal (other than customary offers to purchase) prior to the Latest Maturity Date, and (iv) has covenant, default and remedy provisions no more expansive in scope, or mandatory prepayment, repurchase or redemption provisions no more expansive in scope, taken as a whole, than those set forth in the Senior Notes Indenture, or (b) is Permitted Subordinated Indebtedness.

 

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“Platform” has the meaning specified in Section 6.02.

 

“Pledged Debt” has the meaning specified in the Guaranty and Security Agreement.

 

“Pledged Equity” has the meaning specified in the Guaranty and Security Agreement.

 

“Prepayment Unrestricted Subsidiary” means any Unrestricted Subsidiary that is not a Non-Prepayment Unrestricted Subsidiary.

 

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“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to any determination for any period, that such determination shall be made giving pro forma effect to each acquisition and each Disposition consummated during such period, together with all transactions relating thereto consummated during such period (including any incurrence, assumption, refinancing or repayment of Indebtedness and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom), as if such acquisition or Disposition and related transactions had been consummated on the first day of such period, in each case based on historical results accounted for in accordance with GAAP and, to the extent applicable, the amount of net cost-savings projected by the management of the Borrower as contemplated by clause (ix) of the definition of “Consolidated EBITDA” that are specified in detail in the relevant Compliance Certificate, financial statement or other document provided to the Administrative Agent or any Lender in connection herewith.  If, since the beginning of such period, any Person that subsequently became a Restricted Subsidiary or was merged with or into Holdings or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, Disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then with respect to any determination for any period, such determination shall be made giving pro forma effect for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the applicable four quarter period.  For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company.  If any Indebtedness (including Attributable Indebtedness) bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness).  For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period.  Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen or, if none, then based upon such optional rate chosen as the Borrower may designate.

 

“Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

 

“Public Lender” has the meaning specified in Section 6.02.

 

“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

 

“Qualifying IPO” means the issuance by Holdings or any direct or indirect parent of Holdings of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective

 

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registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).

 

“Recourse Subsidiary” means any Subsidiary of Holdings that is not a Non-Recourse Subsidiary.

 

“Reference Date” has the meaning specified in the definition of “Available Amount.”

 

“Register” has the meaning specified in Section 10.07(c).

 

“Rejection Notice” has the meaning specified in Section 2.05(b)(vii).

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

 

“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any structure or facility.

 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.

 

“Repricing Transaction” means the incurrence of Indebtedness by any Loan Party with the effect of repaying, refinancing, substituting or replacing the Term Loans with Indebtednes having an effective interest cost or weighted average yield (as determined by the Administrative Agent in its reasonable discretion) that is less than the interest rate for or weighted average yield (as determined by the Administrative Agent in its reasonable discretion) of the Term Loans, including without limitation, as may be effected through any amendment to this Agreement relating to the interest rate for, or weighted average yield of, the Term Loans or any Class thereof.

 

“Request for Credit Extension” means (a) with respect to a Borrowing of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided that the unused Term Commitment, unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

“Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders having more than 50% of the sum of the (a) Outstanding Amount of all Revolving Credit Loans and all L/C Obligations (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Revolving Credit

 

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Commitments; provided that unused Revolving Credit Commitment of, and the portion of the Outstanding Amount of all Revolving Credit Loans and all L/C Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

 

“Required Term Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Outstanding Amount of all Term Loans and (b) aggregate unused Term Commitments; provided that the unused Term Commitment and the portion of the Outstanding Amount of all Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.

 

“Resort Spin-Off” means the Disposition by Subsidiaries of Holdings of their interests in Persons consisting of the Barton Creek Resort and Spa and The Homestead and the sale or contribution of other assets or rights related to such resorts.

 

“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, chief accounting officer, treasurer, chief legal officer, managing member or general partner of any Person or, in the case of any Foreign Subsidiary, any duly appointed authorized signatory or any director or managing member of such Person, but in any event, with respect to financial matters, the chief financial officer, treasurer or controller of such Person and with respect to any secretary’s certificate delivered on the Closing Date, any secretary or assistant secretary.  Any document delivered hereunder that is signed by a Responsible Officer of any Person shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.

 

“Restricted Payment” means, with respect to any Person, any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of such Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the stockholders, partners or members (or the equivalent Persons thereof) of such Person or any contribution to or payment under Title IV of ERISA in respect of any Pension Plan maintained or contributed to by any ERISA Affiliate of such Person (excluding Holdings or any Restricted Subsidiary) for its current or former employees.

 

“Restricted Subsidiary” means each Subsidiary of Holdings that is not an Unrestricted Subsidiary.

 

“Returns” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from a Disposition or otherwise) and other amounts received or realized in respect of such Investment.

 

“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).

 

“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans,

 

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in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01(b) under the caption “Revolving Credit Commitment” or in the Assignment and Assumption, Joinder Agreement or Revolving Extension Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  The Aggregate Commitments of all Revolving Credit Lenders shall be $50,000,000 on the Closing Date.

 

“Revolving Credit Commitment Fee” has the meaning specified in Section 2.09(a).

 

“Revolving Credit Commitment Period” means the period from and including the Closing Date to but not including the Maturity Date of the Revolving Credit Facility or any earlier date on which the Revolving Credit Commitments shall terminate as provided herein.

 

“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments and the aggregate amount of the New Revolving Credit Lenders’ Increased Revolving Credit Commitments at such time.

 

“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment, a Increased Revolving Credit Commitment, a Revolving Credit Loan at such time.

 

“Revolving Credit Loan” has the meaning specified in Section 2.01(b).

 

“Revolving Credit Note” means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit C-2 hereto, evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender to the Borrower.

 

“Revolving Extension Agreement” has the meaning specified in Section 2.15(c).

 

“Revolving Maturity Date” has the meaning specified in Section 2.15(a).

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

 

“Sale and Leaseback Transaction” means any arrangement providing for the Lease by Holdings or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by Holdings or such Restricted Subsidiary to a third Person in contemplation of such Lease.

 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“Secured Hedge Agreement” means any Swap Contract required or permitted under Article 6 or Article 7 that is entered into by and between any Loan Party and any Person that was a Lender, an Agent or an Arranger or an Affiliate of a Lender at the time such Swap Contract was entered into.

 

“Secured Hedge Obligations” means the obligations of any Loan Party arising under any Secured Hedge Agreement.

 

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“Secured Obligations” has the meaning specified in the Guaranty and Security Agreement.

 

“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Hedge Banks, Lenders or Affiliates of Lenders under Cash Management Obligations of a Loan Party, the Supplemental Administrative Agent, if any, and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.

 

“Securities Account” has the meaning given to such term in the UCC.

 

“Securities Account Control Agreement” has the meaning specified in the Guaranty and Security Agreement.

 

“Securities Act” means the Securities Act of 1933.

 

“Senior Notes” means the Borrower’s 10% senior unsecured notes due 2018 pursuant to the Senior Notes Indenture.

 

“Senior Notes Indenture” means the Indenture, dated as of the date hereof, pursuant to which the Senior Notes are issued.

 

“Senior Secured Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Senior Secured Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period, in each case for Holdings and its Restricted Subsidiaries.

 

“Solvent” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“SPC” has the meaning specified in Section 10.07(g).

 

“Sponsor” means, KSL and its Affiliates (including KSL Advisors, LLC and any KSL Investment Vehicle).  Notwithstanding the foregoing, portfolio companies of KSL or any KSL Investment Vehicle shall not constitute a part of this definition of “Sponsor”.

 

“Subsidiary” of a Person means a corporation, partnership, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all

 

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references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.

 

“Subsidiary Guarantor” means any Guarantor other than Holdings.

 

“Supplemental Administrative Agent” has the meaning specified in Section 9.10 and “Supplemental Administrative Agents” shall have the corresponding meaning.

 

“Surviving Indebtedness” means Indebtedness of the types specified in clauses (a) and (f) of the definition of “Indebtedness” of Holdings and its Restricted Subsidiaries disclosed on Schedule VI.

 

“Swap Contract” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance, in each case that are entered into for the sole purpose of hedging in the normal course of business and consistent with industry practices, and in any case not for speculative purposes.

 

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

 

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

 

“Swing Line Facility” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04.

 

“Swing Line Lender” means Citicorp North America, Inc., acting through one of its affiliates or branches, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

 

“Swing Line Loan” has the meaning specified in Section 2.04(a).

 

“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B.

 

“Swing Line Sublimit” means $10,000,000.  The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.

 

“Taxes” means any and all present or future taxes, duties, levies, imposts, assessments, deductions, fees, withholdings or similar charges imposed by any Governmental Authority, and all liabilities (including interest, penalties or additions to tax) with respect to the foregoing.

 

“Term B Commitment” means, as to each Term B Lender, its obligation to make a Term B Loan to the Borrower pursuant to Section 2.01(a) in an aggregate amount not to exceed

 

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the amount set forth opposite such Term B Lender’s name on Schedule 2.01(a) under the caption “Term B Commitment” or in the Assignment and Assumption or Joinder Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  The aggregate amount of the Term B Commitments as of the Closing Date is $310,000,000.

 

“Term B Lender” means, at any time, any Lender that has a Term B Commitment or a Term B Loan at such time.

 

“Term B Loan Facility” means the facility providing for the Borrowing of Term B Loans.

 

“Term B Loans” has the meaning specified in Section 2.01(a).

 

“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).

 

“Term Commitment” means a Term B Commitment or a New Term Commitment.

 

“Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan at such time.

 

“Term Loan Facility” means the Term B Loan Facility and each of the New Term Loan Facilities.

 

“Term Loans” means Term B Loans and New Term Loans.

 

“Term Note” means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit C-1 hereto, evidencing the indebtedness of the Borrower to such Term Lender resulting from the Term Loans made by such Term Lender.

 

“Test Period” means a period of four (4) consecutive Fiscal Quarters.

 

“Total Assets” means the total assets of Holdings and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Borrower delivered pursuant to Section 6.01(a) or (b) or, for the period prior to the time any such statements are so delivered pursuant to Section 6.01(a) or (b), the pro forma financial statements referred to in Section 5.05(b).

 

“Total Leverage Ratio” means as of the end of any Fiscal Quarter of the Borrower for the Test Period ending on such date, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period, in each case, for Holdings and its Restricted Subsidiaries.

 

“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

 

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“Trademark Security Agreement” means the Trademark Security Agreement among the Borrower, the other grantors named therein and the Administrative Agent, dated as of the Closing Date.

 

“Transaction Documents” means the Loan Documents, the Senior Notes Indenture, the purchase agreement with respect to the Senior Notes, guarantees of the Senior Notes, a registration rights agreement relating to the Senior Notes, and other agreements in connection with the foregoing, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

 

“Transactions” means, collectively, (a) the execution and delivery and performance by the Loan Parties of each Loan Document to which they are a party executed and delivered or to be executed and delivered on or prior to the Closing Date, and, in the case of the Borrower, the making of the initial Borrowings hereunder, (b) the issuance of the Senior Notes, the Equity Contribution and the repayment of the Existing Indebtedness and the other transactions contemplated thereby, (c) the Resort Spin-Off, and (d) the consummation of any other transactions in connection with the foregoing.

 

“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

 

“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided that in the event that, by reason of mandatory provisions of any applicable Law, any of the attachment, perfection or priority of the Administrative Agent’s or any other Secured Party’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions the applicable Loan Documents relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.

 

“Unfunded Advances/Participations” means (a) with respect to the Administrative Agent, the aggregate amount, if any (i) made available to the Borrower on the assumption that each Appropriate Lender has made its Pro Rata Share of the applicable Borrowing available to the Administrative Agent and (ii) with respect to which a corresponding amount shall not in fact have been made available to the Administrative Agent by any such Lender, (b) with respect to the Swing Line Lender, the aggregate amount, if any, of participations in respect of any outstanding Swing Line Loan that shall not have been funded by the Appropriate Lenders in accordance with Section 2.04(b) and (c) with respect to the L/C Issuer, the aggregate amount of L/C Borrowings.

 

“United States” and “US” mean the United States of America.

 

“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

 

“Unrestricted Subsidiary” means (i) each Dormant Subsidiary and (ii) any Non-Recourse Subsidiary of Holdings designated after the date of this Agreement by the board of directors of the Borrower as an “Unrestricted Subsidiary” pursuant to Section 6.17.

 

“Unsecured Financing” shall mean (a) the Senior Notes and (b) any future Permitted Unsecured Indebtedness.

 

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“Unsecured Financing Documentation” means any documentation governing any Unsecured Financing.

 

“Unsecured Financing Obligations” means any obligations in respect of any Unsecured Financing.

 

“US Lender” has the meaning specified in Section 10.15(b).

 

“US Tax Certificate” has the meaning set forth in Section 10.15(a).

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness.

 

Section 1.02.          Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)           The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)           The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

(i)            Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

(ii)           The term “including” is by way of example and not limitation.

 

(c)           In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”

 

(d)           Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

(e)           The term “manifest error” shall be deemed to include any clearly demonstrable error whether or not obvious on the face of the document containing such error.

 

(f)            For purposes of determining compliance at any time or from time to time with Sections 7.01 (except as set forth in the second proviso to Section 7.01(p)), 7.02, 7.03, 7.05, 7.06, 7.08, 7.09 and 7.13, in the event that any Lien, Investment, Indebtedness, Disposition, Restricted Payment, affiliate transaction, Contractual Obligation or prepayment of Indebtedness meets the criteria of more than one of the

 

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categories of transactions permitted pursuant to any clause of such Sections 7.01, 7.02, 7.03, 7.05, 7.06, 7.08, 7.09 and 7.13, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Borrower in its reasonable discretion at such time of determination.

 

Section 1.03.          Accounting Terms.

 

(a)           All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, as in effect from time to time.

 

(b)           If at any time any change in GAAP (including conversion to IFRS as described below) would affect the computation of any financial covenant or ratio set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such financial covenant or ratio (and provisions in this Agreement that reference such covenant or ratio) to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such covenant or ratio shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of such covenant or ratio made before and after giving effect to such change in GAAP.  If the Borrower notifies the Administrative Agent that it is required to report under IFRS or has elected to do so through an early-adoption policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS (provided that after such conversion, the Borrower cannot elect to report under U.S. generally accepted accounting principles).

 

Section 1.04.          Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

Section 1.05.          References To Agreements And Laws.  Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

Section 1.06.          Times Of Day.  Unless otherwise specified, all references herein to times of day shall be references to New York time (daylight or standard, as applicable).

 

Section 1.07.          Timing Of Payment Or Performance.  When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or

 

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performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

ARTICLE 2

 

THE COMMITMENTS AND CREDIT EXTENSIONS

 

Section 2.01.          The Loans.

 

(a)           The Term Borrowings.  Subject to the terms and conditions set forth herein, each Term B Lender severally agrees to make a loan on the Closing Date to the Borrower (each, a “Term B Loan” and, collectively, the “Term B Loans”) in an amount in US Dollars equal to such Term B Lender’s Term B Commitment.  Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be re-borrowed.  Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

 

(b)           The Revolving Credit Borrowings.  Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans in US Dollars to the Borrower (each such loan, a “Revolving Credit Loan”) from time to time, on any Business Day following the Closing Date during the Revolving Credit Commitment Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided that after giving effect to any Revolving Credit Borrowing, the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, shall not exceed such Lender’s Revolving Credit Commitment.  Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05, and re-borrow under this Section 2.01(b).  Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type made to the Borrower.

 

Section 2.02.          Borrowings, Conversions and Continuations of Loans.

 

(a)           Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative Agent (i) not later than 11:00 a.m. three (3) Business Days prior to the requested date of any Borrowing of Eurodollar Rate Loans, continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to Eurodollar Rate Loans, (ii) not later than 11:00 a.m. on the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.  Except as provided in Section 2.03(c)(i) and Section 2.04(c)(i),

 

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each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof.  Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the account of the Borrower to be credited with the proceeds of such Borrowing.  If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.

 

(b)           Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a).  In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 11:00 a.m. on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in Article 4, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to the Administrative Agent by the Borrower.

 

(c)           Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith.  If a Default or Event of Default shall have occurred and be continuing or would result therefrom, the Administrative Agent or the Required Lenders may require that no Loans may be converted to or continued as Eurodollar Rate Loans.

 

(d)           The Administrative Agent shall promptly notify the Borrower and the Appropriate Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Appropriate Lenders of any change in the Administrative Agent’s prime rate used in determining the Base Rate promptly following the determination of such change.

 

(e)           After giving effect to all Term Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from one Type to the other, and all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect.

 

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(f)            The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

 

Section 2.03.          Letters Of Credit.

 

(a)           The Letter of Credit Commitment.

 

(i)            Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (or any Restricted Subsidiary so long as the Borrower is a joint and several co-applicant, and references to the “Borrower” in this Section 2.03 shall be deemed to include reference to such Restricted Subsidiary) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if, as of the date of such L/C Credit Extension, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

 

(ii)           The L/C Issuer shall be under no obligation to issue any Letter of Credit if

 

(A)          any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which, in each case, the L/C Issuer in good faith deems material to it;

 

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(B)           subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit, prior to giving effect to any automatic renewal, would occur more than twelve (12) months after the date of issuance or last renewal;

 

(C)           the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date;

 

(D)          the issuance of such Letter of Credit would violate any Laws or one or more policies of the L/C Issuer; or

 

(E)           any Revolving Credit Lender is a Defaulting Lender, unless the L/C Issuer has entered into arrangements satisfactory to it to eliminate the L/C Issuer’s risk with respect to the participation in Letters of Credit by all such Defaulting Lenders, including by Cash Collateralizing, or obtaining a backstop letter of credit from an issuer satisfactory to the L/C Issuer to support, each such Defaulting Lender’s Pro Rata Share of any Unreimbursed Amount.

 

(iii)          The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

(b)           Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.

 

(i)            Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days prior to the proposed issuance date or date of amendment, as the case may be, or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably request.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably request.

 

(ii)           Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that

 

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the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof (such confirmation to be promptly provided by the Administrative Agent), then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be.  Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer an unfunded risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.

 

(iii)          If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such twelve month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such renewal.  Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from the Administrative Agent, any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied.

 

(iv)          Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

(c)           Drawings and Reimbursements; Funding of Participations.

 

(i)            Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  Not later than 3:30 p.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing; provided that if such notice is not provided to the Borrower prior to 11:00 a.m. on the Honor Date, then the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of

 

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such drawing on the next succeeding Business Day and such extension of time shall be reflected in computing fees in respect of any such Letter of Credit.  If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Pro Rata Share thereof.  In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02(a) for the principal amount of Base Rate Loans or the conditions set forth in Section 4.02, but subject to the unutilized portion of the aggregate Revolving Credit Commitments.  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if promptly confirmed in writing; provided that the lack of a prompt confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)           Each Revolving Credit Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer.

 

(iii)          With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

 

(iv)          Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of the L/C Issuer.

 

(v)           Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default or that a Default or Event of Default would result therefrom, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s

 

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obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to such Revolving Credit Loans not exceeding the unutilized portion of such Revolving Credit Lender’s Revolving Credit Commitment.  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

(vi)          If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.  A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.

 

(d)           Repayment of Participations.

 

(i)            If, at any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of cash collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.

 

(ii)           If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(d)(i) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.

 

(e)           Obligations Absolute.  The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit issued for its account and to repay each L/C Borrowing relating to any Letter of Credit issued for its account shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

(i)            any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;

 

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(ii)           the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or applicable Restricted Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

(iii)          any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

(iv)          any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

 

(v)           any exchange, release or non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty and Security Agreement or any other guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit; or

 

(vi)          any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower;

 

provided that the foregoing shall not excuse the L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are caused by the L/C Issuer’s gross negligence or willful misconduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The Borrower shall promptly examine a copy of each Letter of Credit issued for its account and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the L/C Issuer.  The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.

 

(f)            Role of L/C Issuer.  Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as

 

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applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application.  The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at Law or under any other agreement.  None of the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e); provided that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

 

(g)           Cash Collateral.  Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing and the conditions set forth in Section 4.02 to a Revolving Credit Borrowing cannot then be met, or (ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, the Borrower shall promptly Cash Collateralize (x) in the case of clause (i), 103% and (y) in the case of clause (ii), 105%, in each case of the then Outstanding Amount of all L/C Obligations (such Outstanding Amount to be determined as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may be) or, in the case of clause (ii), provide a back to back letter of credit in a face amount at least equal to 105% of the then undrawn amount of such Letter of Credit from an issuer and in form and substance satisfactory to the L/C Issuer in its sole discretion.  Any Letter of Credit that is so Cash Collateralized or in respect of which such a back-to-back letter of credit shall have been issued shall be deemed no longer outstanding for purposes of this Agreement.  If at any time the Administrative Agent determines that any funds held as cash collateral are subject to any right or claim of any Person other than the Administrative Agent or claims of the depositary bank arising by operation of law or that the total amount of such funds is less than the amount required by the first sentence of this clause (g), the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the deposit accounts designated by the Administrative Agent as aforesaid, an amount equal to the excess of (x) 103% or 105%, as applicable, of such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as cash collateral that the Administrative Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds are on deposit as cash collateral, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the L/C Issuer.  To the extent the amount of any cash collateral exceeds 103% or 105%, as applicable, of the then Outstanding Amount of such L/C Obligations and so long as no Default or

 

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Event of Default has occurred and is continuing or would result therefrom, the excess shall be refunded to the Borrower.

 

(h)           Applicability of ISP98 and UCP.  Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits , as most recently published by the International Chamber of Commerce (or such later version thereof as may be in effect at the time of issuance) at the time of issuance shall apply to each commercial Letter of Credit.

 

(i)            Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit fee for each Letter of Credit issued equal to the Applicable Rate for Revolving Credit Loans that are Eurodollar Rate Loans times the daily maximum amount then available to be drawn under such Letter of Credit.  Such letter of credit fees shall be computed from the date of issuance thereof on a quarterly basis in arrears.  Such letter of credit fees shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit and on the later of (i) the Letter of Credit Expiration Date and (ii) the day that is five (5) Business Days prior to the Revolving Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).

 

(j)            Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit issued equal to a percentage per annum to be agreed upon of the daily maximum amount then available to be drawn under such Letter of Credit.  Such fronting fees shall be computed on a quarterly basis in arrears.  Such fronting fees shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees not related to the fronting fee and standard costs and charges are due and payable within five (5) Business Days of demand and are nonrefundable.

 

(k)           Conflict with Letter of Credit Application.  In the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms of this Agreement shall control.

 

(l)            Letters of Credit Issued Prior to Closing Date.  Schedule 2.03(l) contains a schedule of certain letters of credit issued prior to the Closing Date by Citibank, N.A. for the account of the Borrower (including any such letter of credit issued on behalf of a Subsidiary of the Borrower that is a Restricted Subsidiary).  On the Closing Date (i) such letters of credit, to the extent outstanding, shall be automatically and without further action by the parties thereto converted to Letters of Credit issued pursuant to this Section 2.03 for the account of the Borrower and subject to the provisions hereof, and for this purpose the fees specified in this Section 2.03 shall be payable (in substitution for any fees set forth in the applicable letter of credit reimbursement agreements or applications relating to such letters of credit) as if such letters of

 

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credit had been issued on the Closing Date, (ii) the issuer of such Letters of Credit shall be deemed to be an “L/C Issuer” hereunder solely for the purpose of maintaining such letters of credit until the expiration date stated therein (without giving effect to any provision therein for automatic extension, evergreen maturity or the like), (iii) the face amount of such letters of credit shall be included in the calculation of L/C Obligations and (iv) all liabilities of the Borrower with respect to such letters of credit shall constitute Obligations.  Nothwithstanding anything to the contrary in this Agreement, no letter of credit converted in accordance with this clause (l) may be amended, extended or renewed; provided that each such letter of credit may, at the Borrower’s option and subject to the terms and conditions of this Agreement, be replaced at the time of its maturity with a Letter of Credit issued hereunder.

 

Section 2.04.          Swing Line Loans.

 

(a)           The Swing Line.  Subject to the terms and conditions set forth herein, the Swing Line Lender may, in its sole discretion, make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day (other than the Closing Date) during the Revolving Credit Commitment Period in an aggregate amount at any time outstanding (together with the Outstanding Amount of Loans made by the Swing Line Lender in its capacity as a Lender or the Swing Line Lender) not to exceed the lesser of (i) the Swing Line Lender’s Pro Rata Share of the Revolving Credit Commitments and (ii) the Swing Line Sublimit; provided that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and re-borrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender an unfunded risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share and the amount of such Swing Line Loan.

 

(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, (ii) the requested borrowing date, which shall be a Business Day and (iii) the account of the Borrower to be credited with the proceeds of such Swing Line Borrowing.  Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of such proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in

 

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such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.  Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when a Revolving Credit Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it to eliminate the Swing Line Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swing Line Loans, including by Cash Collateralizing, or obtaining a backstop letter of credit from an issuer satisfactory to the Swing Line Lender to support, such Defaulting Lender’s or Defaulting Lenders’ Pro Rata Share of the outstanding Swing Line Loans.

 

(c)           Refinancing of Swing Line Loans.  The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding.  Each such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02(a), without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans or the conditions set forth in Section 4.02, but subject to the unutilized portion of the aggregate Revolving Credit Commitments.  The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.

 

(i)            If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in such Swing Line Loan and each such Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c) shall be deemed payment in respect of such participation.

 

(ii)           If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.  A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

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(iii)          Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default or that a Default or Event of Default would result therefrom, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to such Revolving Credit Loans not exceeding the unutilized portion of such Revolving Credit Lender’s Revolving Credit Commitment.  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

 

(d)           Repayment of Participations.  At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.

 

(i)            If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.

 

(e)           Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender.

 

(f)            Payments Directly to Swing Line Lender.  The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

 

Section 2.05.          Prepayments.

 

(a)           Optional.

 

(i)            The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans made to the Borrower, in each case, in whole or in part without premium or penalty except as described in clause (iv) below; provided that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m., (1) three (3) Business Days prior to any date of prepayment of

 

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Eurodollar Rate Loans and (2) one (1) Business Day prior to any date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid.  The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05.  Each prepayment of the Loans pursuant to this Section 2.05(a) shall be applied among the Facilities in such amounts as the Borrower may direct in its sole discretion and, in the case of the Term B Loan Facility, in inverse order of maturity or as otherwise directed by the Borrower.

 

(ii)           The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 11:00 a.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

(iii)          Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(a)(i) or Section 2.05(a)(ii) if such prepayment would have resulted from (A) an Equity Issuance or a refinancing of the Facilities that is not prohibited by this Agreement or (B) issuance of New Term Loans and/or Increased Revolving Credit Commitments, which refinancing or issuance shall not be consummated or shall otherwise be delayed.

 

(iv)          At the time of the effectiveness of any Repricing Transaction that (A) makes any prepayment of Term Loans in connection with any Repricing Transaction, or (B) effects any amendment of this Agreement resulting in a Repricing Transaction and is consummated prior to the first anniversary of the Closing Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each applicable Term Lender, a fee in an amount equal to, (x) in the case of clause (A), a prepayment premium of 1% of the amount of the Term Loans being prepaid and (y) in the case of clause (B), a payment equal to 1% of the aggregate amount of the applicable Term Loans outstanding immediately prior to such amendment.  Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction.

 

(b)           Mandatory.

 

(i)            Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has

 

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been delivered pursuant to Section 6.02(b), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) 50% of Excess Cash Flow, if any, for the Fiscal Year of the Borrower covered by such financial statements (commencing with the Fiscal Year of the Borrower ended December 27, 2011) minus (B) the sum of (1) the amount of any voluntary prepayments of Term Loans made pursuant to Section 2.05(a) during such Fiscal Year and (2) solely to the extent the amount of the Revolving Credit Commitments are permanently reduced pursuant to Section 2.06 in connection therewith (and solely to the extent of the amount of such reduction), the amount of any voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) during such Fiscal Year; provided that such percentage shall be reduced to 25% if the Total Leverage Ratio as of the last day of the applicable Fiscal Year was less than 3.00:1.00; and provided, further, that no mandatory prepayment under this Section 2.05(b)(i) shall be required if the Total Leverage Ratio as of the last day of the applicable Fiscal Year was less than 2.50:1.00.

 

(ii)           (A) With respect to any Disposition or any Casualty Event by Holdings or any Subsidiary (other than a Non-Prepayment Unrestricted Subsidiary) that results in the realization or receipt by any such Subsidiary of Net Cash Proceeds, the Borrower shall cause to be prepaid on or prior to the date that is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest or cause to be reinvested all or a portion of such Net Cash Proceeds in accordance with Section 2.05(b)(ii)(B) (which election may only be made (x) if no Default or Event of Default has occurred and is then continuing or would result therefrom and (y) the Disposition or Casualty Event giving rise to such Net Cash Proceeds is with respect to the property of Holdings or a Subsidiary that is not a Prepayment Unrestricted Subsidiary);

 

(B)           With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event (other than a Disposition or Casualty event in respect of the property of a Prepayment Unrestricted Subsidiary), at the option of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may reinvest or cause to be reinvested all or any portion of such Net Cash Proceeds in assets or property that are useful for its business within three hundred and sixty (360) days of the receipt of such Net Cash Proceeds (provided that if prior to the expiration of such three hundred and sixty (360) day reinvestment period, any Loan Party enters into a legally binding commitment to reinvest such Net Cash Proceeds, such reinvestment period shall be extended by an additional ninety (90) days); provided that if any Net Cash Proceeds are not so reinvested within such reinvestment period or are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to any such Net Cash Proceeds shall be promptly applied to the prepayment of the Term Loans as set forth in this Section 2.05.

 

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(iii)          If for any reason the aggregate Outstanding Amount of the Revolving Credit Loans, the L/C Obligations and Swing Line Loans at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay Revolving Credit Loans or Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iii) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds such aggregate Revolving Credit Commitments then in effect.

 

(iv)          If Holdings or any Restricted Subsidiary incurs or issues (A) any Indebtedness not permitted to be incurred or issued pursuant to Section 7.03, (B) any Indebtedness incurred in reliance on Section 7.03(r) to the extent the applicable Permitted Acquisition is not consummated within ninety (90) days of the incurrence or issuance thereof or (C) any Permitted Unsecured Indebtedness incurred in reliance on Section 7.03(t) to the extent procceeds of such Indebtedness are not used to prepay the Loans pursuant to Section 2.05(a) withing 10 days of the incurrence or issuance thereof, the Borrower shall cause the Term Loans to be prepaid in an aggregate amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is, in the case of clause (A), one (1) Business Day after such incurrence or issuance and, in the case of clause (B), no later than the ninetieth (90th) day after such incurrence or issuance.

 

(v)           If any Prepayment Unrestricted Subsidiary incurs or issues any Indebtedness, the Borrower shall cause the Term Loans to be prepaid in an aggregate amount equal to 100% of all Net Cash Proceeds received therefrom (minus the principal amount, together with any applicable premium, penalty, interest and breakage costs, of any Indebtedness (other than the Obligations) that is required by its terms to be repaid in connection with such incurrence or issuance of Indebtedness) on or prior to the date that is one (1) Business Day after such incurrence or issuance.

 

(vi)          Subject to Section 2.14 with respect to any New Term Loans, (A) Each prepayment of Term Loans of any Class pursuant to this Section 2.05(b) shall be applied, first, in inverse order of maturity to the principal repayment installments of such Term Loans other than the principal payment due on the Maturity Date and second, to the principal payment on the Maturity Date of such Term Loans; and unless otherwise provided herein, each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares (prior to giving effect to any rejection by any Term Lender of any such prepayment pursuant to clause (vii) below), subject to clause (vii) of this Section 2.05(b) and (B) on and after the borrowing of any New Term Loans, the prepayments referred to in this Section 2.05(b) shall be allocated among each Class of Term Loans pro rata based on the aggregate principal amount of the Outstanding Amount of Term Loans of each such Class unless, with respect to any Class of New Term Loans, the Borrower and the New Term Loan Lenders for such Class of New Term Loans have agreed in accordance with Section 2.14(e)(iii) that such Class of New Term Loans will be receive less than such Class of New Term Loans’ pro rata share of prepayments made under this Section 2.05(b) (it being understood that any Class of Term B Loans shall not be allocated any less than its pro rata share of such prepayment).

 

(vii)         The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i)

 

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through (vi) of this Section 2.05(b) at least one (1) Business Day prior to the date of such prepayment.  Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment.  The Administrative Agent will promptly notify each Appropriate Lender of the contents of any such prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.  Any Term Lender (a “Declining Lender”, and any Term Lender which is not a Declining Lender, an “Accepting Lender”) may elect, by delivering not less than two (2) Business Days prior to the proposed prepayment date, a written notice (such notice, a “Rejection Notice”) that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Lender pursuant to clauses (i) through (vi) of this Section 2.05(b) not be made, in which event the portion of such prepayment which would otherwise have been applied to the Term Loans of the Declining Lenders shall be retained by the Borrower (for itself and on behalf of the other Restricted Subsidiaries).  If a Term Lender fails to deliver a Rejection Notice within the time frame specified above, such Term Lender will be deemed to be an Accepting Lender.

 

(viii)        Funding Losses, Etc.  All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a Eurodollar Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurodollar Rate Loan pursuant to Section 3.05.  Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, if any prepayment of Eurodollar Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b). Upon the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would result therefrom, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).

 

Section 2.06.          Termination or Reduction of Commitments.

 

(a)           Optional.  The Borrower may, upon written notice to the Administrative Agent, terminate the unused Commitments of any Class, or from time to time permanently reduce the unused Commitments of any Class; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount (A) of $500,000 or any whole multiple of $100,000 in excess thereof or (B) equal to the entire remaining amount of the Commitments of any Class and (iii) if, after giving effect to any reduction of the Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be, exceeds the amount of the Revolving Credit Commitments, such sublimit shall be automatically reduced by the amount of such excess.  The amount of any such Commitment reduction shall not be applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrower or as required by the preceding sentence.  Notwithstanding the foregoing, the Borrower may rescind or postpone

 

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any notice of termination of the Commitments if such termination would have resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or otherwise shall be delayed.

 

(i)            Mandatory.  The Term Commitment of each Term Lender shall be automatically and permanently reduced to $0 at 5:00 p.m. on the Closing Date upon funding the Term Loans.

 

(ii)           The Revolving Credit Commitment of each Revolving Credit Lender shall be automatically and permanently reduced to $0 on the Maturity Date of the Revolving Credit Facility.

 

(b)           Application of Commitment Reductions; Payment of Fees.  The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of unused portions of the Letter of Credit Sublimit, the Swing Line Sublimit or the unused Commitments of any Class under this Section 2.06.  Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.07).  All commitment fees accrued until the effective date of any termination of the Aggregate Commitments of any Class shall be paid to the Appropriate Lenders on the effective date of such termination.

 

Section 2.07.          Repayment of Loans.

 

(a)           Term Loans.  The Borrower shall, on the last Business Day of each March, June, September and December, commencing with the last Business Day of March 2011 and ending with the last Business Day of September immediately preceding the Maturity Date for the Term B Loan Facility, repay to the Administrative Agent for the ratable account of the Term B Lenders, 0.25% of the aggregate principal amount of all Term B Loans outstanding on the Closing Date (which installments shall be reduced as a result of the application of prepayments in accordance with Section 2.05); provided that the final principal repayment installment of the Term Loans of each Class shall be repaid on the Maturity Date of the Term B Loan Facility and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans of such Class outstanding on such date.

 

(b)           Revolving Credit Loans.  The Borrower shall repay to the Administrative Agent for the ratable account of the applicable Revolving Credit Lenders on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all of its Revolving Credit Loans outstanding on such date.

 

(c)           Swing Line Loans.  The Borrower shall repay the aggregate principal amount of all of its Swing Line Loans on the date that is five (5) Business Days prior to the Maturity Date for the Revolving Credit Facility.

 

Section 2.08.          Interest.

 

(a)           Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the

 

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applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Credit Loans.

 

(b)           While any Default or Event of Default set forth in Section 8.01(a), (f) or (g) exists, the Borrower shall pay interest on all overdue amounts hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.  Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c)           Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

Section 2.09.          Fees.  In addition to certain fees described in Section 2.03(i) and Section 2.03(j):

 

(a)           Revolving Credit Commitment Fee.  The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee (each, a “Revolving Credit Commitment Fee” and, collectively, the “Revolving Credit Commitment Fees”) equal to the Applicable Rate times the actual daily amount by which the aggregate Revolving Credit Commitments exceed the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations.  The Revolving Credit Commitment Fees shall accrue at all times from the date hereof until the Maturity Date of the Revolving Credit Facility, including at any time during which one or more of the conditions in Article 4 is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date for the Revolving Credit Facility.  The Revolving Credit Commitment Fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

(b)           Other Fees.  The Borrower shall pay or cause to be paid to the Agents such fees as may have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

Section 2.10.          Computation of Interest and Fees.  All computations of interest for Base Rate Loans when the Base Rate is determined by the Administrative Agent’s “prime rate” shall be made on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a three hundred and sixty-five (365) day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same

 

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day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

Section 2.11.          Evidence of Indebtedness.

 

(a)           The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting as a non-fiduciary agent solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary course of business.  The accounts or records maintained by each Lender and the Register maintained by the Administrative Agent shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the Register in respect of such matters, the Register shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.  The Borrower and each Lender agrees from time to time after the occurrence and during the continuance of a Default or Event of Default under Section 8.01(f) or Section 8.01(g)(i) to execute and deliver to the Administrative Agent all such Notes or other promissory notes and other instruments and documents as the Administrative Agent shall reasonably request to evidence and confirm the respective interests and obligations of the Lenders after giving effect to any exchange of Lenders’ interests pursuant to arrangements relating thereto among the Lenders, and each Lender agrees to surrender any Notes or other promissory notes originally received by it in connection with its Loans hereunder to the Administrative Agent for cancellation against delivery of any Notes or other promissory notes so executed and delivered.

 

(b)           In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the Register and the accounts and records of any Lender in respect of such matters, the Register shall control in the absence of manifest error.

 

(c)           Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.11(a) and Section 2.11(b), and by each Lender in its account or accounts pursuant to Section 2.11(a) and Section 2.11(b), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is

 

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incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.

 

Section 2.12.          Payments Generally.

 

(a)           All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 4:00 p.m. shall be deemed received on the next succeeding Business Day in the Administrative Agent’s sole discretion and any applicable interest or fee shall continue to accrue to the extent applicable.

 

(b)           If any payment to be made by the Borrower shall come due on a day other than a Business Day in relation to the Borrower, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

 

(c)           Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:

 

(i)            if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to time in effect; and

 

(ii)           if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.  When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing.  If such Lender does not pay such

 

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amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing.  Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.

 

(d)           If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(e)           The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint.  The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.

 

(f)            Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

(g)           Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03.  If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (i) the Outstanding Amount of all Loans outstanding at such time and (ii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.

 

Section 2.13.          Sharing Of Payments.  If, (other than (x) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or Participant or (y) as otherwise expressly provided elsewhere herein) any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any

 

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right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon.  The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.  The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments.  Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

 

Section 2.14.          Incremental Facilities.

 

(a)           At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (i) prior to the Maturity Date of the Revolving Credit Facility, one or more increases to the existing Revolving Credit Commitments (any such increase in commitments, the “Increased Revolving Credit Commitments”) and/or (ii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new term loan commitments (the “New Term Commitments”); provided, that (x) the aggregate principal amount of all such Increased Revolving Credit Commitments shall not exceed $25,000,000 (x) the aggregate principal amount of all such Increased Revolving Credit Commitments and New Term Commitments together shall not exceed $75,000,000 and (z) any such request shall be for an aggregate principal amount of Increased Revolving Credit Commitments or New Term Commitments that is not less than $5,000,000 (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Increased Revolving Credit Commitments or New Term Commitments indicated above and all such Increased Revolving Credit Commitments and New Term Commitments obtained prior to such date) and integral multiples of $5,000,000 in excess of that amount.  Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Increased Revolving Credit Commitments or New Term Commitments, as applicable, shall be effective, which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (ii) the

 

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identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Increased Revolving Credit Commitments or New Term Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Increased Revolving Credit Commitment or New Term Commitment, which Lender may elect or decline, in its sole discretion, to provide all or any portion of such requested Increased Revolving Credit Commitment or New Term Commitment.  Such Increased Revolving Credit Commitments or New Term Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Increased Revolving Credit Commitments or New Term Commitments, as applicable; (2) after giving effect to the making of any New Term Loans or effectiveness of Increased Revolving Credit Commitments, each of the conditions set forth in Section 4.02 shall be satisfied; (3) (i) Holdings and its Restricted Subsidiaries shall be in Pro Forma Compliance with each of the covenants set forth in Section 7.10, and (ii) the Senior Secured Leverage Ratio shall be no greater than 2.50:1.00 as of the end of the Test Period most recently ended, in each case, giving Pro Forma Effect to such Increased Revolving Credit Commitments or New Term Loans (and with respect to any Increased Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Facility after giving effect to such Increased Revolving Credit Commitment and any Increased Revolving Credit Commitments previously made pursuant to this Section 2.14), as applicable; (4) the Increased Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register, and each New Revolving Credit Lender and New Term Lender shall be subject to the requirements set forth in Section 10.15; (5) the Borrower shall make any payments required pursuant to Section 3.05 in connection with the Increased Revolving Credit Commitments or New Term Commitments, if applicable; and (6) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction.

 

(b)           On any Increased Amount Date on which Increased Revolving Credit Commitments are effected through an increase to the existing Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Increased Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Increased Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the Increased Revolving Credit Commitment and all matters relating thereto.  The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.02 and 2.05(a) of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

 

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(c)           Any New Term Loans effected through the establishment of one or more new Term Loans made on an Increased Amount Date shall be designated a separate Class of New Term Loans, as applicable, for all purposes of this Agreement.  On any Increased Amount Date on which any New Term Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such Class, and (ii) each New Term Lender of such Class shall become a Lender hereunder with respect to the New Term Commitment of such Class and the New Term Loans of such Class made pursuant thereto.  Notwithstanding the foregoing, New Term Loans may have identical terms to the Term B Loans and be treated as the same Class as the Term B Loans.

 

(d)           The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Class of New Term Commitments and the New Term Lenders of such Class and (ii) in the case of each notice to any Revolving Credit Lender with respect to an increase in the Revolving Credit Commitments, the respective interests in such Revolving Credit Lender’s Revolving Credit Commitments, in each case, subject to the assignments contemplated by clause (b) of this Section 2.14.

 

(e)           The terms and provisions of the New Term Loans and New Term Commitments of any Class shall be as agreed between the Borrower and the New Term Lenders providing such New Term Loans and New Term Commitments, and except as otherwise set forth herein, to the extent not identical to the Term B Loans, shall be reasonably satisfactory to Administrative Agent.  In any event:

 

(i)            the Weighted Average Life to Maturity of all New Term Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Term B Loans (except by virtue of amortization or prepayment of the Term B Loans prior to the time of such incurrence);

 

(ii)           the Maturity Date of any Class of the New Term Loans shall be no earlier than the maturity of the Term B Loans;

 

(iii)          the New Term Loans will share ratably in right of prepayment with the Term Loans pursuant to Section 2.05(b) or otherwise as contemplated by clause (g) of this Section 2.14 below; provided that the New Term Loans may be afforded lesser payments to the extent the Lenders providing such New Term Loans so agree; and

 

(iv)          the yield applicable to the New Term Loans of each Class shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to such New Term Loans (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such New Term Loans) shall not be greater than the applicable interest rate payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term B Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder), plus 0.25% per annum unless the interest rate with respect to the Term B Loan is increased so as to cause the then applicable interest rate under this Agreement on the Term B Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder and the adjustment of any

 

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interest rate floor) to equal the yield then applicable to the New Term Loans (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such New Term Loans) minus 0.25%; provided that customary arrangement or commitment fees payable to the arrangers of such New Term Loans (or their respective affiliates) under this Section 2.14 shall be excluded.

 

(f)            Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent and the Borrower to effect the provision of this Section 2.14, and for the avoidance of doubt, this Section 2.14 shall supersede any provisions in Section 10.01 to the contrary.

 

(g)           The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents.

 

Section 2.15.          Modification of Revolving Credit Loans.

 

(a)           Borrower Request.  The Borrower may by thirty (30) Business Days’ written notice to the Administrative Agent elect to request, effective as of the applicable Maturity Date or any date which Revolving Credit Commitments have been previously extended pursuant to this Section 2.15 (any such date a “Revolving Maturity Date”), to extend the applicable Revolving Loans and the applicable Revolving Credit Commitments beyond such applicable Revolving Maturity Date.  Such notice shall specify (i) the date on which the Borrower proposes that the extended Revolving Credit Commitments shall mature, (ii) the identity of each Eligible Assignee (together with any consents that would be required pursuant to Section 10.07 for an assignment to such Eligible Assignee) to whom the Borrower proposes any portion of such extended Revolving Credit Commitments be allocated and the amounts of such allocations and (iii) the minimum amounts, if any, and minimum increments, if any, that the Borrower may, in its discretion, specify; provided that the Borrower shall first approach each existing Lender to provide all or a portion of the extended Revolving Credit Commitments, which Lender may elect or decline, in its sole discretion, to provide such extended Revolving Credit Commitment and if it so declines the unpaid principal amount of its Revolving Credit Loans shall be paid in full on the applicable Revolving Maturity Date.

 

(b)           Conditions.  The extended Revolving Credit Commitments shall become effective, as of the applicable Revolving Maturity Date; provided that:

 

(i)            each of the conditions set forth in Section 4.02 shall be satisfied;

 

(ii)           no Default or Event of Default shall have occurred and be continuing or would result from the extension of the Revolving Credit Commitments; and

 

(iii)          the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.

 

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(c)           Terms of Extended Revolving Credit Commitments.  The term and provisions of extended Revolving Credit Commitments made pursuant to such extension:

 

(i)            shall have a yield as may be agreed by the Borrower and the Revolving Lenders making such Revolving Credit Commitment extensions; provided that the yield applicable to the extended Revolving Credit Commitments (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such extended Revolving Credit Commitments) shall not be greater than the applicable interest rate payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the non-extended Revolving Credit Commitments (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder), plus 0.25% per annum unless the interest rate with respect to the non-extended Revolving Credit Commitments is increased so as to cause the then applicable interest rate under this Agreement on the non-extended Revolving Credit Commitments (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder and the adjustment of any interest rate floor) to equal the yield then applicable to the extended Revolving Credit Commitments (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such extended Revolving Credit Commitments) minus 0.25%; provided that customary arrangement or commitment fees payable to the arrangers of such extended Revolving Credit Commitments (or their respective affiliates) under this Section 2.15 shall be excluded;

 

(ii)           shall have a maturity date that is not prior to the maturity date of the non-extended Revolving Credit Commitments and will require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Credit Commitments;

 

(iii)          shall otherwise have terms and conditions that are substantially identical to, or less favorable to the investors providing such extended Revolving Credit Commitments than, the terms of the non-extended Revolving Credit Commitments; and

 

(iv)          the extended Revolving Credit Commitments shall be effected by an extension agreement (the “Revolving Extension Agreement”) executed by the Borrower, the Administrative Agent and each Lender making such extended Commitment, in form and substance satisfactory to each of them.  The Revolving Extension Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.15.

 

(d)           Letters of Credit and Swing Line Loans.  Any Revolving Extension Agreement may provide for the issuance of Letters of Credit for the account of the Borrower, or the provision to the Borrower of Swing Line Loans, pursuant to any extended Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swing Line Loans under the Revolving Credit Commitments and with the consent of the L/C Issuer and/or Swing Line Lender, as applicable.  In addition, if so provided in the relevant Revolving Extension Agreement and with the consent of each L/C Issuer, participations in Letters of Credit expiring on or after the Revolving Maturity Date shall be re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding extended

 

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Revolving Credit Commitments in accordance with the terms of such Revolving Extension Agreement; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Credit Commitments, be deemed to be participation interests in respect of such Revolving Credit Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly.

 

(e)           Equal and Ratable Benefit.  The Revolving Credit Commitments extended pursuant to this paragraph shall constitute Revolving Credit Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents.  The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the extension of any such Revolving Credit Commitments.

 

Section 2.16.          Defaulting Lenders.

 

(a)           Reallocation of Defaulting Lender Commitment, Etc.  If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply with respect to any outstanding Letter of Credit participation pursuant to Section 2.03(b)(i) and Swing Line Loan participation pursuant to Section 2.04(c) of such Defaulting Lender:

 

(i)            the Letter of Credit participation pursuant to Section 2.03(b)(i) and Swing Line Loan participation pursuant to Section 2.04(c), in each case, of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitments; provided that (a) the Outstanding Amount of each Non-Defaulting Lender’s Revolving Credit Loans and L/C Obligations (with the aggregate amount of such Lenders’ risk participations and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender) may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (b) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;

 

(ii)           to the extent that any portion (the “unreallocated portion”) of the Defaulting Lender’s Letter of Credit participation pursuant to Section 2.03(b)(i) and Swing Line Loan participation pursuant to Section 2.04(c) cannot be so reallocated, whether by reason of the first proviso in clause (i) above or otherwise, the Borrower will, not later than two Business Days after demand by the Administrative Agent (at the direction of the L/C Issuer and/or the Swing Line Lender, as the case may be), (1) Cash Collateralize the obligations of the Borrower to the L/C Issuer and the Swing Line Lender in respect of such Letter of Credit participation pursuant to Section 2.03(b)(i) and the Swing Line Loan participation pursuant to Section 2.04(c), as the case may be, in an amount equal to the aggregate amount of the unreallocated portion of such Letter of Credit participation pursuant to Section 2.03(b)(i) and the Swing Line Loan participation pursuant to Section 2.04(c), or (2) in the case of such Swing Line Loan participation

 

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pursuant to Section 2.04(c), prepay (subject to clause (iii) below) and/or Cash Collateralize in full the unreallocated portion thereof, or (3) make other arrangements satisfactory to the Administrative Agent, and to the L/C Issuer and the Swing Line Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and

 

(iii)          any amount paid by the Borrower for the account of a Defaulting Lender that was or is a Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated non-interest-bearing account until (subject to Section 2.16(d)) the termination of the Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority:  first to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Lender to the L/C Issuer or the Swing Line Lender (pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Lenders hereunder other than Defaulting Lenders that are Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them, fourth to the payment of fees then due and payable to the Non-Defaulting Lenders that are Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fifth to pay principal and unreimbursed payments made by the L/C Issuer pursuant to a Letter of Credit then due and payable to the Non-Defaulting Lenders that are Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders that are Lenders, and seventh after the termination of the Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.

 

(b)           Fees.  Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to Section 2.9 (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees); provided that in the case of a Defaulting Lender that was or is a Lender (x) to the extent that a portion of the Letter of Credit participation pursuant to Section 2.03(b)(i) and Swing Line Loan participation pursuant to Section 2.04(c) of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section 2.16(a), such fees that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance with their respective Commitments, and (y) to the extent any portion of such Letter of Credit participation pursuant to Section 2.03(b)(i) and Swing Line Loan participation pursuant to Section 2.04(c) cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the L/C Issuer and the Swing Line Lender, as applicable, as their interests appear (and the pro rata payment provisions of Sections 2.12 and 2.13 will automatically be deemed adjusted to reflect the provisions of this Section).

 

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(c)                                  Termination of Defaulting Lender Commitment.  The Borrower may terminate the unused amount of the Commitment of a Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof), and in such event the provisions of Section 2.16(a)(iii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender that is a Lender under this Agreement (in each case whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender may have against such Defaulting Lender.

 

(d)                                 Cure.  If the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.16(a)), such Lender will, to the extent applicable, purchase such portion of outstanding Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the total Revolving Credit Commitments, Revolving Credit Loans, Letter of Credit participation pursuant to Section 2.03(b)(i) and Swing Line Loan participation pursuant to Section 2.04(c) of the Lenders to be on a pro rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender (and such Commitments and Loans of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

 

ARTICLE 3

 

TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

 

Section 3.01.                             Taxes.

 

(a)                                  Unless otherwise required by any Law, any and all payments by any Loan Party to or for the account of any Agent or any Lender (which term shall, for purposes of this Section 3.01, include any L/C Issuer) under any Loan Document shall be made free and clear of and without deduction for any Taxes.  If any Loan Party or other applicable withholding agent shall be required by any Laws to deduct any Non-Excluded Taxes or Other Taxes from or in respect of any sum payable under any Loan Document to any Agent or any Lender, (i) the sum payable by the applicable Loan Party shall be increased as necessary so that after all required deductions (including deductions applicable to additional sums payable under this Section 3.01) have been made, each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) the applicable withholding agent shall make such deductions, (iii) the applicable withholding agent shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment, the applicable withholding agent (if it is not the Administrative Agent) shall furnish to the Administrative Agent the original or a

 

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certified copy of a receipt evidencing payment thereof to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.

 

(b)                                 In addition, the Borrower and the Guarantors agree, jointly and severally, to pay any and all present or future stamp, court or documentary taxes and any other excise, property, intangible or mortgage recording taxes or charges or similar levies which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter referred to as “Other Taxes”).  For the avoidance of doubt, “Other Taxes” shall not include any Excluded Taxes.

 

(c)                                  Without duplication, the Borrower and the Guarantors agree, jointly and severally, to indemnify each Agent and each Lender for the full amount of any Non-Excluded Taxes attributable to any sum payable under any Loan Document to any Agent or Lender and any Other Taxes (including any Non-Excluded Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.01, and any such Non-Excluded Taxes or Other Taxes attributable to any payment made by or on account of any Guarantor) payable by such Agent or such Lender, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  Payment under this Section 3.01(c) shall be made within thirty (30) days after the date such Lender or such Agent makes a demand therefor, but in no event earlier than ten (10) days before such Taxes are due and payable to the applicable Governmental Authority.  If any Lender or Agent determines in its sole discretion that it is entitled to receive a refund in respect of any Non-Excluded Taxes or Other Taxes as to which indemnification or additional amounts have been paid to such Lender or Agent, as applicable, by any Loan Party pursuant to or in respect of Section 3.01 of this Agreement or the other Loan Documents, such Lender or Agent, as applicable, shall promptly apply for such refund unless, in the good faith judgment of such Lender or Agent, as applicable, applying for such refund would cause such Lender or Agent, as applicable, to suffer any material economic, legal or regulatory disadvantage.  The Borrower shall reimburse the Lender or Agent, as applicable, for all reasonable out-of-pocket expenses (including Taxes) of the Lender or Agent incurred in pursuing such refund.  If the Lender or Agent, as applicable, receives any such refund, it shall be governed by Section 3.01(d).

 

(d)                                 If any Lender or Agent receives a refund (whether received in cash or applied by the taxing authority granting the refund to offset another tax obligation otherwise owed) in respect of any Non-Excluded Taxes or Other Taxes as to which indemnification or additional amounts have been paid to it by any Loan Party pursuant to or in respect of this Section 3.01 or pursuant to another Loan Document, it shall promptly remit such refund (including any interest included in such refund by the applicable taxing authority) to the Borrower, net of all reasonable out-of-pocket expenses (including Taxes) of the Lender or Agent, as the case may be; provided that the Borrower, upon the request of the Lender or Agent, as the case may be, agrees promptly to return such refund to such party in the event such party is required to repay such refund to the relevant taxing authority.  Such Lender or Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority (provided that such Lender or Agent may delete any information therein that such Lender or Agent deems confidential).  Nothing herein contained shall interfere with the right of a Lender or Agent to arrange its Tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent to

 

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claim any Tax refund or to disclose any information relating to its tax affairs or any computations in respect thereof or require any Lender or Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, relief, remissions or repayments to which it may be entitled.

 

(e)                                  Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.01(a) or Section 3.01(c) with respect to such Lender it will, if requested by the Borrower, use commercially reasonable efforts (subject to such Lender’s overall internal policies of general application and legal and regulatory restrictions) to avoid the consequences of such event, including to designate another Lending Office for any Loan or Letter of Credit affected by such event or to assign its rights and obligations with respect to such Loan or Letter of Credit to another of its offices, branches or affiliates; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.01(e) shall affect or postpone any of the Obligations of any Loan Party or the rights of the Lender pursuant to Section 3.01(a) and Section 3.01(c).

 

Section 3.02.                             Illegality.  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, then, on notice thereof specifying the circumstances giving rise to such determination by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.  Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

 

Section 3.03.                             Inability To Determine Rates.  If the Administrative Agent or the Required Lenders determine that for any reason (i) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (ii) that the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, or (iii) that Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and the Interest Period of such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders, if such suspension was initiated by the Required Lenders) revokes such notice.  Upon receipt of any such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

 

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Section 3.04.                             Increased Cost And Reduced Return; Capital Adequacy; Reserves On Eurodollar Rate Loans.

 

(a)                                  If any Lender determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the date hereof, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Non-Excluded Taxes indemnifiable under Section 3.01, (ii) any Excluded Taxes and (iii) reserve requirements contemplated by Section 3.04(c)), then from time to time upon written demand of such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall, without duplication, pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.

 

(b)                                 If any Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, in each case after the date hereof, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and such Lender’s desired return on capital), then from time to time upon written demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall, without duplication pay to such Lender such additional amounts as will compensate such Lender for such reduction.

 

(c)                                  The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits, additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence of manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurodollar Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan; provided that the Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender.  If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable ten (10) days from receipt of such notice.

 

(d)                                 If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Borrower, use commercially reasonable efforts (subject to such Lender’s overall internal policies of general application and legal and regulatory restrictions) to avoid the consequences of such event, including to designate another Lending Office for any

 

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Loan or Letter of Credit affected by such event or to assign its rights and obligations with respect to such Loan or Letter of Credit to another of its offices, branches or affiliates; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further that nothing in this Section 3.04(d) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.04(a), Section 3.04(b) or Section 3.04(c).

 

Section 3.05.                             Funding Losses.  Upon demand of any Lender from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

 

(a)                                  any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or

 

(b)                                 any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

 

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.

 

For purposes of calculating amounts payable by a Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded. A certificate of such Lender submitted to the Borrower (through the Administrative Agent) with respect to any amounts owing under this Section 3.05 shall be conclusive absent manifest error.

 

Section 3.06.                             Matters Applicable To All Requests For Compensation.

 

(a)                                  Any Agent or any Lender claiming compensation under this Article 3 shall deliver a certificate to the Borrower setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder, which shall be conclusive in the absence of manifest error.  In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.

 

(b)                                 With respect to any Lender’s claim for compensation under Section 3.01, Section 3.02, Section 3.03 or Section 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than three hundred and sixty-five (365) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such three hundred and sixty-five (365) day period referred to above shall be extended to include the period of retroactive effect thereof.  If any Lender requests compensation by the Borrower under Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue Eurodollar Rate Loans from

 

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one Interest Period to another, or to convert Base Rate Loans into Eurodollar Rate Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.

 

(c)                                  If the obligation of any Lender to make or continue any Eurodollar Rate Loan from one Interest Period to another, or to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s Eurodollar Rate Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such Eurodollar Rate Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to such conversion no longer exist:

 

(i)                                     to the extent that such Lender’s Eurodollar Rate Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurodollar Rate Loans shall be applied instead to its Base Rate Loans; and

 

(ii)                                  all Loans that would otherwise be made or continued as Eurodollar Rate Loans from one Interest Period to another by such Lender shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into Eurodollar Rate Loans shall remain as Base Rate Loans.

 

(d)                                 If any Lender gives notice to a Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to the conversion of such Lender’s Eurodollar Rate Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar Rate Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted irrespective of whether such conversion results in greater than five (5) Interest Periods being outstanding under this Agreement, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurodollar Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Eurodollar Rate Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments.

 

Section 3.07.                             Replacement Of Lenders Under Certain Circumstances.

 

(a)                                  If at any time (x) the Borrower becomes obligated to pay additional amounts or indemnity payments described in Section 3.01(a) or (c) or Section 3.02 as a result of any condition described in such Sections or any Lender ceases to make Eurodollar Rate Loans as a result of any condition described in Section 3.04, (y) any Lender becomes a Defaulting Lender or (z) any Lender becomes a Non-Consenting Lender, then the Borrower may, on ten (10) Business Days’ prior written notice to the Administrative Agent and such Lender, replace such Lender (in its capacity as a Lender under the applicable Facility, if the underlying matter in respect of which such Lender has become a Non-Consenting Lender relates to a certain Class of Loans or Commitments) by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrower in such

 

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instance) all of its rights and obligations under this Agreement (in respect of the applicable Class of Loans or Commitments if the underlying matter in respect of which such Lender has become a Non-Consenting Lender relates to a certain Class of Loans or Commitments) to one or more Eligible Assignees (together with any consents that would be required pursuant to Section 10.07 for an assignment to such Eligible Assignee); provided that (i) in the case of any Eligible Assignees in respect of Non-Consenting Lenders, the replacement Lender shall agree to the consent, waiver or amendment to which the Non-Consenting Lender did not agree and (ii) neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person.

 

(b)                                 Any Lender being replaced pursuant to Section 3.07(a) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans of the applicable Class and, if applicable, participations in L/C Obligations and Swing Line Loans, and (ii) deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent.  Pursuant to such Assignment and Assumption, (i) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitment and outstanding Loans of the applicable Class and, if applicable, participations in L/C Obligations and Swing Line Loans, (ii) all obligations of the Borrower owing to the assigning Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such assignment and assumption and (iii) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender.

 

(c)                                  Notwithstanding anything to the contrary contained above, (i) the Lender that acts as the L/C Issuer may not be replaced hereunder at any time that it has any Letter of Credit outstanding hereunder unless arrangements reasonably satisfactory to such L/C Issuer (including the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer satisfactory to such L/C Issuer or the depositing of cash collateral into a cash collateral account in amounts and pursuant to arrangements satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced in such capacity hereunder except in accordance with the terms of Section 9.10.

 

(d)                                 In the event that (i) the Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a certain Class of Loans or Commitments and (iii) the Required Lenders have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender.”

 

(e)                                  In the event that any Revolving Credit Lender shall become a Defaulting Lender or S&P, Moody’s and Thompson’s BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders that are insurance companies (or Best’s Insurance Reports, if such insurance company is not rated by Insurance Watch Ratings Service)) shall, after the date that any Lender becomes a Revolving Credit Lender, downgrade the long term certificate deposit ratings of such

 

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Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a Lender that is an insurance company (or B, in the case of an insurance company not rated by InsuranceWatch Ratings Service)) (or, with respect to any Revolving Credit Lender that is not rated by any such ratings service or provider, the L/C Issuer or the Swing Line Lender shall have reasonably determined that there has occurred a material adverse change in the financial condition of any such Lender, or a material impairment of the ability of any such Lender to perform its obligations hereunder, as compared to such condition or ability as of the date that any such Lender became a Revolving Credit Lender) then the L/C Issuer or the Swing Line Lender shall have the right, but not the obligation, at the Borrower’s expense, upon notice to such Lender and the Administrative Agent, to replace such Lender with an assignee (in accordance with and subject to the restrictions contained in Section 10.07(b)), and such Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in Section 10.07(b), including, for the avoidance of doubt, the prior written consent of the Borrower to the extent otherwise required by Section 10.07(b)) all its interests, rights and obligations in respect of its Revolving Credit Commitment to such assignee; provided, however, that no such assignment shall conflict with any law, rule and regulation or order of any Governmental Authority.

 

Section 3.08.                             Survival.  All of the Borrower’s obligations under this Article 3 shall survive any assignment of rights by, or the replacement of, a Lender (including any L/C Issuer) and the termination of the Aggregate Commitments and repayment of all other Obligations hereunder for a period of three hundred and sixty-five (365) days from the date of such assignment, replacement or termination and repayment, as applicable.  Subject in all cases to the foregoing sentence, failure or delay on the part of any Lender to demand compensation or reimbursement pursuant to this Article 3 shall not constitute a waiver of such Lender’s right to demand such compensation or reimbursement; provided that the Borrower shall not be required to compensate or reimburse a Lender pursuant to this Article 3 for any increased costs or reductions in return incurred or accrued more than three hundred and sixty-five (365) days prior to the date that such Lender notifies the Borrower of the circumstances giving rise to such demand for compensation or reimbursement; provided, further that if any of the circumstances giving rise to such increased costs or reductions in return are retroactive, then the three hundred and sixty-five (365) day period referred to in the preceding proviso shall be extended to include the period of retroactive effect.

 

ARTICLE 4

 

CONDITIONS PRECEDENT

 

Section 4.01.                             Conditions To Initial (Closing Date) Credit Extension.  The obligation of each Lender to make the Credit Extensions hereunder on the Closing Date is subject to satisfaction of the following conditions precedent, subject in all respects to the final paragraph of this Section 4.01:

 

(a)                                  The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified, and each executed by a Responsible Officer of the signing Loan Party:

 

(i)                                     executed counterparts of this Agreement;

 

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(ii)                                  a Note executed by the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to the Closing Date, if any;

 

(iii)                               the Guaranty and Security Agreement, duly executed by each of the Loan Parties, together with, if applicable:

 

(A)                              certificates representing the Pledged Equity referred to therein, accompanied by undated stock powers executed in blank or, if applicable, other appropriate instruments of transfer and instruments evidencing the Pledged Debt, if any, indorsed in blank,

 

(B)                                copies of all lien searches with respect to the Collateral, conducted by a search firm reasonable acceptable to the Administrative Agent in such locations as the Administrative Agent shall have requested, together with copies of the financing statements (or similar documents) disclosed by such searches, and accompanied by evidence that any Liens indicated in any such financing statement (x) that are not permitted by Section 7.01 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) and (y) that are not Permitted Prior Liens will be subordinated to the Lien of the Administrative Agent created by the Collateral Documents, and all proper financing statements, duly prepared for filing under the UCC necessary in order to perfect and protect the Liens created under the Guaranty and Security Agreement (in the circumstances and to the extent required under such Guaranty and Security Agreement), covering the Collateral of the Loan Parties described in the Guaranty and Security Agreement;

 

(iv)                              the Intellectual Property Security Agreement, duly executed by each of the relevant Loan Parties, together with evidence that all action that is necessary in order to perfect and protect the Liens on Material Intellectual Property created under the Intellectual Property Security Agreement (in the circumstances and to the extent required under such Guaranty and Security Agreement) has been taken;

 

(v)                                 the Mortgages, duly executed by each of the relevant Loan Parties, together with evidence of compliance with the Mortgage Requirement for the Mortgaged Property subject to such Mortgage;

 

(vi)                              all Deposit Account Control Agreements, duly executed by the corresponding Deposit Account Bank and Loan Party, that, in the reasonable judgment of the Administrative Agent, shall be required for the Loan Parties to comply with Section 6.13; and

 

(vii)                           Securities Account Control Agreements duly executed by the appropriate Loan Party and (1) all “securities intermediaries” (as defined in the UCC) with respect to all Securities Accounts and securities entitlements of the Borrower and each Guarantor and (2) all “commodities intermediaries” (as defined in the UCC) with respect to all commodities contracts and commodities accounts held by the Borrower and each Guarantor, that, in the reasonable

 

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judgment of the Administrative Agent, shall be required for the Loan Parties to comply with Section 6.13.

 

(b)                                 The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified;

 

(i)                                     an opinion of (A) Perkins Coie LLP, special counsel for the Loan Parties, and (B) each local counsel for the Loan Parties listed on Schedule VII, in each case, dated the Closing Date and addressed to each L/C Issuer, the Administrative Agent and the Lenders, and their successors, assigns and participants permitted under this Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent;

 

(ii)                                  (A) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (B) a certificate of Responsible Officers of each Loan Party dated the Closing Date and certifying (w) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Closing Date, (x) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (y) that the certificate or articles of incorporation or organization of such Loan Party have not been amended since the later of (1) the date of the certificate of good standing or (2) the date of the last amendment thereto shown on the certified copy of the certificate or articles of incorporation or organization, in ease case, furnished pursuant to clause (A) above, and (z) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (B) above; and

 

(iii)                               a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (d), (e), (f), (g), (i), (j), (k) and (l) of this Article 4.

 

(c)                                  The Administrative Agent shall have received, not later than five (5) Business Days prior to the Closing Date, all documentation and other information with respect to the Borrower and the Guarantors required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.

 

(d)                                 Since December 29, 2009, after giving effect to the Transactions, there has not been any change, development or event that, individually or in the aggregate, has had or would reasonably be expected to have, a Material Adverse Effect.

 

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(e)                                  No Indebtedness (of the type specified in clause (a) of the definition of “Indebtedness”) of Holdings or the Restricted Subsidiaries shall remain outstanding as of the Closing Date (after giving effect to the Transactions), other than (i) Indebtedness pursuant to the Loan Documents, (ii) the Senior Notes and (iii) Surviving Indebtedness.

 

(f)                                    To the extent applicable, Holdings and its Restricted Subsidiaries are in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) the PATRIOT Act, in each case, except to the extent any non-compliance could not reasonably be expected to have a Material Adverse Effect.  No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended;

 

(g)                                 On or before the Closing Date, the Borrower shall have received the Equity Contribution;

 

(h)                                 The Administrative Agent’s receipt of a certificate from the Treasurer of the Borrower, in form and substance reasonably acceptable to the Administrative Agent, certifying that Holdings and its Restricted Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent;

 

(i)                                     Payment of all fees and expenses due to the Arranger and the Lenders under any Fee Letter or any Loan Document that are required to be paid on the Closing Date from the proceeds of the initial funding under the Credit Extensions.

 

(j)                                     On the Closing Date, prior to and after giving effect to any Credit Extensions made hereunder, the Senior Secured Leverage Ratio of the Borrower shall not exceed 3.00:1.00.

 

(k)                                  Copies of (i) audited consolidated financial statements for Holdings and its Restricted Subsidiaries for Fiscal Years 2007, 2008 and 2009 (pro forma for the Resort Spin-Off), (ii) pro forma consolidated and consolidating balance sheets of Holdings and its Restricted Subsidiaries (after giving effect to the Resort Spin-Off) as at the Closing Date and reflecting the consummation of the Transactions, the related financings and other transactions contemplated by the Loan Documents, with such pro forma financial statements to be in form and substance satisfactory to the Administrative Agent and (iii) the projections of Holdings and its Restricted Subsidiaries for Fiscal Year 2010 through and including Fiscal Year 2011 (after giving effect to the Resort Spin-Off).

 

(l)                                     The Administrative Agent shall be reasonably satisfied that (i) subject only to the funding of the initial Loans hereunder, all conditions precedent to the consummation of the Transactions shall have been satisfied or waived with the consent of the Administrative Agent; and (ii) subject only to the funding of the initial Loans hereunder, the Transactions shall have been consummated in accordance with the Transaction Documents in form and substance reasonably satisfactory to the Administrative Agent and all applicable Laws and all representations and warranties contained in the Transaction Documents shall be true and correct in all material respects (and in all respects if qualified by materiality) on the Closing Date.

 

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Notwithstanding anything to the contrary in this Section 4.01, to the extent that any Collateral (or the creation or perfection of any security interest therein), in each case intended to be made or granted (determined in accordance with the principles set forth in Sections 6.12 and 6.18) is not or cannot be made or granted on the Closing Date (other than (i) UCC lien searches, (ii) the pledge and perfection of collateral with respect to which a lien may be perfected upon the Closing Date solely by the filing of financing statements under the UCC and (iii) the pledge and perfection of security interests in the Equity Interests of the Subsidiaries with respect to which a lien may be perfected upon the Closing Date by the delivery of a stock certificate) after use by the Borrower of commercially reasonable efforts to do so or without undue burden or expense, then the provision of any such Collateral (or creation or perfection of a security interest therein) shall not constitute a condition precedent to the Closing Date but shall be required to be delivered within the time periods specified in Section 6.18.  It is acknowledged and agreed that the Collateral Documents set forth in Section 6.18 shall not be provided on the Closing Date but shall be delivered within the periods specified in Section 6.18 (or such longer period as the Administrative Agent, in its sole discretion, shall have agreed).

 

Section 4.02.                             Conditions To All Credit Extensions.  The obligation of each Lender to honor any Request for Credit Extension is subject to satisfaction of the following conditions precedent:

 

(a)                                  The representations and warranties of the Borrower and each other Loan Party contained in Article 5 or any other Loan Document shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if qualified by materiality) as of such earlier date and (ii) that for purposes of this Section 4.02, the representations and warranties contained in Section 5.05(a) shall be deemed to refer (A) on the Closing Date, the to the most recent financial statements furnished pursuant to Section 4.01(k) and (B) thereafter, to the most recent financial statements furnished pursuant to 6.01(a) and Section 6.01(b) and, in the case of the financial statements furnished pursuant to Section 6.01(b), the representations contained in Section 5.05(a), as modified by this clause (ii), shall be qualified by the statement that such financial statements are subject to the absence of footnotes and year-end audit adjustments.

 

(b)                                 No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom.

 

(c)                                  The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

 

Each Request for Credit Extension submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 4.02(a) and Section 4.02(b) have been satisfied on and as of the date of the applicable Credit Extension.  The foregoing sentence shall not apply to requests by the Borrower to convert Loans from one Type to another or to continue Interest Periods with respect to Eurodollar Rate Loans.

 

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ARTICLE 5

 

REPRESENTATIONS AND WARRANTIES

 

Each of the Borrower and Holdings represents and warrants to the Administrative Agent and the Lenders at the time of each Credit Extension that:

 

Section 5.01.                             Existence, Qualification And Power; Compliance with Laws.  Holdings and each Restricted Subsidiary (a) is a Person duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority to (i) own or Lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing under the Laws of each jurisdiction where its ownership, Lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, writs, injunctions and orders and (e) has all requisite governmental licenses, authorizations, consents, Permits and other approvals to operate its business as currently conducted; except in each case referred to in clauses (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.02.                             Authorization; No Contravention.

 

(a)                                  The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party are within such Loan Party’s corporate or other powers and have been duly authorized by all necessary corporate or other organizational action.

 

(b)                                 The execution, delivery and performance by each Loan Party of each Loan Document to which such Loan Party is a party and, as of the Closing Date only, the consummation of the Transactions by Holdings and its Restricted Subsidiaries do not and will not (i) contravene the terms of any of Holdings or such Restricted Subsidiary’s Organization Documents, (ii) conflict with or result in any default, breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or require any payment (except for Indebtedness to be repaid on or prior to the Closing Date in connection with the Transactions) to be made under (A) any (1) Surviving Indebtedness or (2) other Contractual Obligation to which Holdings or any Restricted Subsidiary is a party or affecting Holdings or any Restricted Subsidiary or the property of Holdings or any Restricted Subsidiary or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which Holdings or any Restricted Subsidiary or its property is subject; or (iii) violate any Law; except with respect to any conflict, default, breach, contravention, payment or violation referred to in clause (ii) or clause (iii), to the extent that such conflict, breach, contravention, payment or violation could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.03.                             Governmental Authorization; Other Consents; Liquor Licenses.  (a) No Permit or other approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by any Loan Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings and other actions necessary

 

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to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the Permits, approvals, consents, exemptions, authorizations, actions, notices and filings that have been duly obtained, taken, given or made and are in full force and effect (and copies of which have been delivered to the Administrative Agent on or prior to the Closing Date) and (iii) those Permits, approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.

 

(b)                                 Each Liquor License issued in connection with any Material Real Property as of the Closing Date is set forth on Schedule 5.03(b).  Each Liquor License issued to any Restricted Subsidiary (or any other Person with respect to the sales of alcoholic beverages on the property of a Restricted Subsidiary) is validly issued and in full force and effect and the applicable Restricted Subsidiary (or such other Person) has the legal right to sell alcoholic beverages at the property described in such Liquor License.  The applicable Restricted Subsidiary (or such other Person) has the legal right to utilize each Liquor License held in connection with the operation of any restaurant, bar or other alcoholic beverage service located at any Material Real Property that is the subject of such Liquor License.  All revenues and receipts generated from the sales of alcoholic beverages at any Material Real Property pursuant to a Liquor License are collected either by the licensee thereunder or the applicable Restricted Subsidiary (or such other Person).

 

(c)                                  With respect to any Liquor License necessary to serve or sell liquor, beer, wine and other alcoholic beverages from any restaurants, snack bars, bars, mini bars, lounges and other food and beverage sales locations located within any of the Material Real Properties, to the extent that any such Liquor License is held by Persons other than Holdings and its Restricted Subsidiaries (including not-for-profit corporations and other legal entities Controlled by Affiliates of Holdings and its Subsidiaries), Holdings or the applicable Restricted Subsidiary (i) has entered into, or (ii) solely with respect to Liquor Licences issued in connection with The Club at Viniterra, Nashville City Club and Carolina Club, has used commercially reasonably efforts to enter into, a Liquor License Arrangement (including, without limitation, a management or concession agreement) reasonably satisfactory to the Administrative Agent with respect to such Liquor License.

 

Section 5.04.                             Binding Effect.  This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto.  This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by bankruptcy insolvency, reorganization, receivership, moratorium or other Laws affecting creditors’ rights generally and by general principles of equity.

 

Section 5.05.                             Financial Statements; No Material Adverse Effect.

 

(a)                                  The Borrower has heretofore furnished to the Lenders its consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Holdings and its Restricted Subsidiaries (i) as of the end of and for each Fiscal Year of the Borrower in the three-Fiscal Year period ended December 29, 2009, audited by and accompanied by the opinion of Deloitte & Touche LLP, and (ii) as of and for each subsequent Fiscal Quarter ended at least forty-five (45) days prior to the Closing Date, certified by its chief financial officer.  Such financial statements fairly present in all material respects the financial condition and results of

 

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operations of Holdings and its Restricted Subsidiaries as of such dates and for such periods.  Such financial statements were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments.

 

(b)                                 The Borrower has heretofore delivered to the Lenders the unaudited pro forma consolidated balance sheets and related pro forma statement of income of Holdings and its Restricted Subsidiaries as of and for the twelve-month period ended on the last day of the most recently completed four-Fiscal Quarter period ended at least ninety (90) days prior to the Closing Date (if such period is a Fiscal Year) or at least forty-five (45) days prior to the Closing Date (if such period is a Fiscal Quarter), prepared after giving effect to the Transactions as if they had occurred, with respect to such balance sheet, on such date and, with respect to such statement of income, on the first day of the twelve-month period ending on such date.

 

(c)                                  Since December 29, 2009, after giving effect to the Transactions, there has not been any change, development or event that, individually or in the aggregate, has had or could reasonably be expected to have, a Material Adverse Effect.

 

(d)                                 The forecasts of consolidated balance sheet, income statement and cash flow statement of Holdings and its Restricted Subsidiaries for each Fiscal Year of the Borrower ending after the Closing Date until the latest scheduled termination of all Commitments hereunder, copies of which have been furnished to the Administrative Agent and the initial Lenders prior to the Closing Date, have been prepared in good faith based upon reasonable assumptions at the time made in light of the conditions existing at the time of delivery of such forecasts, it being understood that such forecasts, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such forecasts may differ from the forecasted results and that such differences may be material and that such forecasts are not a guarantee of financial performance.

 

Section 5.06.                             Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Holdings or any Restricted Subsidiary, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Holdings or any Restricted Subsidiary or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.07.                             Ownership of Property; Liens; Material Agreements.

 

(a)                                  Each Restricted Subsidiary has good marketable and insurable title in fee simple to, or valid and indefeasible leasehold interests in, or easements or other limited property interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to conduct its business and to utilize such assets for their intended purposes and Liens permitted by Section 7.01.

 

(b)                                 Set forth on Schedule 5.07(b) is a complete and accurate list of all real property owned, leased or managed by any Restricted Subsidiary as of the Closing Date, showing the street address and state.

 

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(c)                                  A true and complete copy of each Material Lease has been delivered to the Administrative Agent, and except as set forth on Schedule 5.07(c), the Ground Leases or a memorandum thereof have been duly recorded.  No Material Lease restricts the use of any portion of any Material Real Property by any Restricted Subsidiary that is party to such Material Lease, or its successors or its assigns, in a manner that could reasonably be expected to result in a Material Adverse Effect.

 

(d)                                 Each Material Agreement (i) is in full force and effect and no default has occurred thereunder and (ii) to the knowledge of Holdings or any Restricted Subsidiary, there is not any existing condition which, but for the passage of time or the giving of notice or both, would result in a default under the terms of any such Material Agreement, except in each case for such defaults that could not reasonably be expected to result in a Material Adverse Effect.

 

Section 5.08.                             Environmental Compliance.

 

(a)                                  There are no pending or, to the knowledge of any Restricted Subsidiary, threatened, actions, suits, proceedings, demands or claims alleging potential liability or responsibility for violation of, or liability under, any Environmental Law and relating to businesses, operations or properties of any Restricted Subsidiary that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(b)                                 Except as could not reasonably be expected to have a Material Adverse Effect, (i) none of the properties currently or, to the knowledge of Holdings or any Restricted Subsidiary, formerly owned, leased or operated by Holdings or any Restricted Subsidiary is listed or formally proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list; (ii) there are no and, to the knowledge of Holdings or any Restricted Subsidiary, never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been discharged, treated, stored or disposed on, at or under any property currently owned or operated by Holdings or any Restricted Subsidiary or, to its knowledge, on, at or under any property formerly owned, leased or operated by Holdings or any Restricted Subsidiary during or prior to the period of such ownership or operation; (iii) there is no asbestos or asbestos-containing material on or at any property currently owned or operated by Holdings or any Restricted Subsidiary; and (iv) there has been no Release of Hazardous Materials on, at, under or from any property currently, or to the knowledge of Holdings or any Restricted Subsidiary, formerly owned or operated by Holdings or any Restricted Subsidiary or, to the knowledge of Holdings or any Restricted Subsidiary, any offsite locations to which Holdings or any Restricted Subsidiary sent any wastes for treatment or disposal.

 

(c)                                  The real property and material personal property currently owned or operated by any Restricted Subsidiary does not, in each case, contain any Hazardous Materials in amounts or concentrations that (i) constitute, or constituted a violation of, (ii) require response or remedial action under, or (iii) could result in Holdings or such Restricted Subsidiary incurring liability under Environmental Laws; which violations, remedial actions and liabilities, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.

 

(d)                                 None of Holdings or any Restricted Subsidiary is undertaking, and none of Holdings or any Restricted Subsidiary has completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action

 

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relating to any actual or threatened Release of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law except for any such investigation or assessment or remedial or response action that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

(e)                                  All Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by Holdings or any Restricted Subsidiary have been disposed of in a manner which could not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect.

 

(f)                                    Holdings and each Restricted Subsidiary has made available to the Administrative Agent and the Lenders all (i) material environmental investigations and studies and (ii) environmental reviews or other material environmental analysis, that, in each case, are in the possession of Holdings or any Restricted Subsidiary and relate to the business operations or property of Holdings or any Restricted Subsidiary.

 

Section 5.09.                             Taxes.  Holdings and each Restricted Subsidiary has timely filed all tax returns and reports required to be filed, has timely paid all taxes levied or imposed upon it or its properties, income or assets (including in its capacity as a withholding agent) and has made adequate provision (in accordance with GAAP) for all Taxes not yet due and payable, except (a) those Taxes which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP or (b) with respect to which the failure to make such filing, payment or provision could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.  There are no current, pending or threatened audits, assessments, deficiencies, proceedings or claims that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.10.                             ERISA Compliance.

 

(a)                                  Schedule 5.10(a) sets forth, as of the date hereof, a true and complete list of and separately identifies all Pension Plans, Foreign Plans and Multiemployer Plans.  Each Pension Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Laws.  Each Pension Plan that is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter from the IRS or an application for such a letter has been or will be submitted to the IRS within the applicable required time period with respect thereto and, to the knowledge of Holdings or any Restricted Subsidiary, nothing has occurred which could reasonably be expected to prevent, or cause the loss of, such qualification.  In the five years preceding the Closing Date, Holdings and each Restricted Subsidiary and each of its ERISA Affiliates have made, in all material respects, all required contributions to each Pension Plan, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 or 430 of the Code has been made with respect to any Pension Plan.

 

(b)                                 There are no pending or, to the knowledge of Holdings or any Restricted Subsidiary, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan that could reasonably be expected to have a Material Adverse Effect.  To the knowledge of Holdings or any Restricted Subsidiary, there has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Pension Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

 

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(c)                                  Except as set forth on Schedule 5.10(c), no ERISA Event has occurred or is reasonably expected to occur and none of Holdings or any Restricted Subsidiary nor any of their ERISA Affiliates has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.10(c), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

(d)                                 Each Foreign Plan has been maintained in compliance with its terms and with the requirements of any and all applicable requirements of Laws and has been maintained, where required, in good standing with applicable regulatory authorities, except for any noncompliance which could not reasonably be expected to result in a Material Adverse Effect.  None Holdings or any Restricted Subsidiary nor any of their ERISA Affiliates has incurred any obligation, contingent or otherwise, in connection with any termination, wind up or withdrawal with respect to any Foreign Plan, except as could not reasonably be expected to result in a Material Adverse Effect.

 

Section 5.11.                             Subsidiaries; Equity Interests.  As of the Closing Date, none of Holdings or any Restricted Subsidiary has any Subsidiaries other than those specifically disclosed on Schedule 5.11, and all of the outstanding Equity Interests in such Subsidiaries are owned directly by the Person(s) set forth on Schedule 5.11 and are free and clear of all Liens except (a) those created under the Collateral Documents and (b) any nonconsensual Lien that is permitted under Section 7.01.  As of the Closing Date, Schedule 5.11 (i) sets forth the name and jurisdiction of each Subsidiary and (ii) sets forth the ownership interest of the such Person(s) in each Subsidiary, including the percentage of such ownership.

 

Section 5.12.                             Margin Regulations; Investment Company Act.

 

(a)                                  No proceeds of any Borrowings or drawings under any Letter of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of Regulation U issued by the FRB.

 

(b)                                 None of Holdings or its Restricted Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

 

Section 5.13.                             Disclosure.  (a) No report, financial statement, certificate or other information furnished by or on behalf of Holdings or any Restricted Subsidiary to any Agent or any Lender in connection with the transactions contemplated by the Loan Documents and the negotiation of the Loan Documents or delivered hereunder or any other Loan Document, when taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that with respect to (a) financial estimates, projected financial information and other forward-looking information and (b) information of a general economic or general industry nature, the Borrower represents and warrants only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that projections, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such projections may differ from the projected results and that such differences may be material and that projections are not a guarantee of financial performance.

 

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(b)                                 Holdings and each Restricted Subsidiary has provided the Administrative Agent and the Lenders with (i) information that describes the current schedule of membership initiation fees, related accounts receivable and other charges with respect to its golf club and non-golf club (i.e., business and sporting club) businesses (including the Membership Deposit Liabilities) and (ii) information regarding the total number of members at each such club as of the Closing Date.

 

Section 5.14.                             Intellectual Property; Licenses, Etc.  Holdings and each Restricted Subsidiary owns, or possesses the right to use, all of the patents, trademarks, service marks, trade dress, internet domain names, copyrights, trade secrets, and know-how, and applications for registration of or goodwill associated with the foregoing, as applicable (collectively, “IP Rights”) that are necessary for the operation of their respective businesses, without conflict with the rights of any other Person, except to the extent such failure to own or possess the right to use or such conflicts, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  To the knowledge of Holdings and any Restricted Subsidiary, the conduct of Holdings’ and each of its Restricted Subsidiaries’ business does not infringe upon the intellectual property rights held by any other Person except for such infringements, individually or in the aggregate, which could not reasonably be expected to have a Material Adverse Effect.  No claim or litigation regarding any of the foregoing is pending or, to the knowledge of Holdings or any Restricted Subsidiary, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.15.                             Solvency.  On the date of any Credit Extension made hereunder, both prior to and after giving effect to such Credit Extension, Holdings and its Restricted Subsidiaries, on a consolidated basis, are Solvent.

 

Section 5.16.                             Perfection, Etc.  Except as otherwise contemplated hereby or under any other Loan Documents, all filings and other actions necessary to perfect and protect the Liens on the Collateral created under, and as required by, the Collateral Documents have been duly made or taken or otherwise provided for (to the extent required hereby or by the applicable Collateral Documents) and are in full force and effect and the Collateral Documents create in favor of the Administrative Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions (to the extent required hereby or by the applicable Collateral Documents), perfected first priority Lien in the Collateral, securing the payment of the Secured Obligations, subject only to Permitted Prior Liens.  The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens created or permitted under the Loan Documents.

 

Section 5.17.                             Compliance with Laws Generally.  None of Holdings or its Restricted Subsidiaries, with respect to itself, its material properties and the use of such material properties, is in violation of any applicable Law, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, except for such violations or defaults that (a) are being contested in good faith by appropriate proceedings and (b) individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

Section 5.18.                             Labor Matters.  Except as in the aggregate has not had and could not reasonably be expected to have a Material Adverse Effect, there are no strikes, lockouts or slowdowns against Holdings or any Restricted Subsidiary pending or, to the knowledge of Holdings and any Restricted Subsidiary, threatened.

 

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Section 5.19.                             Senior Debt.  The Obligations constitute “Senior Debt” and “Designated Senior Debt” (or any other terms of similar meaning and import) under the Senior Notes Indenture, any Permitted Subordinated Indebtedness and any (subordinated, with respect to the Senior Notes) Permitted Refinancing thereof.

 

Section 5.20.                             Limitations on Holdings and Certain Subsidiaries.  (a) Holdings has not (i) created, incurred, assumed or suffered to exist any Liens on any Equity Interests of the Borrower (other than Liens permitted by Section 7.01(a)(i) and nonconsensual Liens to the extent permitted under Section 7.01) or (ii) conducted or engaged in any operations or business other than (A) those incidental to its ownership of the Equity Interests of the Borrower, (B) the maintenance of its legal existence, (C) the performance of the Loan Documents and the Management Agreement, (D) any Qualifying IPO or any other issuance of its Equity Interests not prohibited by Article 7, (E) any transaction that Holdings is expressly permitted or contemplated to enter into or consummate under Article 7 (including the incurrence of Permitted Unsecured Indebtedness), (F) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and its Subsidiaries and (G) holding any cash or property received in connection with Restricted Payments made by the Restricted Subsidiaries pursuant to Section 7.06 pending application thereof by Holdings.  After giving effect to any transactions and related payments permitted under clauses (i) or (ii) above, Holdings does not have any material assets (other than the Equity Interests of the Borrower) or any material liabilities (other than any Permitted Unsecured Indebtedness).

 

(b)                                 No Dormant Subsidiary (i) has created, incurred, assumed or suffered to exist any Liens on its assets or property; (ii) conducts or engages in any operations or business, other than (A) those incidental to its dissolution or sale, in each case to the extent not prohibited under this Agreement, (B) maintaining its legal existence, and (C) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and its Subsidiaries; or (iii) has any liabilities (including Indebtedness) other than (A) liabilities that, in the aggregate, are not material or (B) Membership Deposit Liabilities.  Neither the total assets nor the total revenues of all Dormant Subsidiaries, in each case, taken together, exceed 1% of the Borrower’s consolidated total assets or consolidated total revenues, respectively.

 

(c)                                  The aggregate Fair Market Value of all property and assets transferred to, contributed to or otherwise held (as valued at the time of designation of each applicable Subsidiary pursuant to Section 6.17) by all Prepayment Unrestricted Subsidiaries (other than Dormant Subsidiaries), taken together, in each case, that were property or assets held by Holdings or its Subsidiaries on the Closing Date (excluding cash or Cash Equivalents to the extent the Investment thereof by Holdings or any of its Restricted Subsidiaries is permitted under Section 7.02(l)), does not exceed $75,000,000.  Neither the total assets (excluding cash or Cash Equivalents to the extent received as an Investment from Holdings and its Restricted Subsidiaries permitted under Section 7.02(l)) nor the total revenues of all Unrestricted Subsidiaries, in each case, taken together, exceed 7.5% of the Borrower’s consolidated total assets or consolidated total revenues, respectively.

 

ARTICLE 6

 

AFFIRMATIVE COVENANTS

 

So long as (a) any Lender shall have any Commitment hereunder, (b) any Loan or other Obligation hereunder that is accrued and payable (and not contingent or inchoate) shall remain

 

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unpaid or unsatisfied, or (c) any Letter of Credit shall remain outstanding, Holdings and the Borrower shall, and shall cause each other Restricted Subsidiary to:

 

Section 6.01.                             Financial Statements.  Deliver to the Administrative Agent for further distribution to each Lender:

 

(a)                                  as soon as available, but in any event within ninety (90) days after the end of each Fiscal Year of the Borrower, a consolidated balance sheet of Holdings and its Restricted Subsidiaries as at the end of such Fiscal Year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year and the figures contained in the forecasts for the previous Fiscal Year provided pursuant to clause (c) below, all in reasonable detail and prepared in accordance with GAAP (other than with respect to forecasts as applicable), audited and accompanied by a report and opinion of Deloitte & Touche LLP or any other independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;

 

(b)                                 as soon as available, but in any event within forty-five (45) days after the end of each Fiscal Quarter of the Borrower, a consolidated balance sheet of Holdings and its Restricted Subsidiaries as at the end of such Fiscal Quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year of the Borrower then ended, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and the figures contained in the forecasts for the previous Fiscal Year provided pursuant to clause (c) below, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its Restricted Subsidiaries in accordance with GAAP (other than with respect to forecasts as applicable), subject only to normal year-end audit adjustments and the absence of footnotes;

 

(c)                                  as soon as available, but in any event no later than sixty (60) days after the end of each Fiscal Year of the Borrower, (i) reasonably detailed forecasts prepared by management of the Borrower, which shall include consolidated and consolidating balance sheets, income statements and cash flow statements of Holdings and its Restricted Subsidiaries for the Fiscal Year following such Fiscal Year then ended (including, without limitation, separate results for each of the golf club and non-golf club (i.e., business and sporting club) businesses and a narrative as to the critical operating and financing assumptions underlying the financial projections); and

 

(d)                                 simultaneously with the delivery of each set of consolidated financial statements referred to in Section 6.01(a) and Section 6.01(b) above, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements.

 

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Section 6.02.                             Certificates; Other Information.  Deliver to the Administrative Agent for further distribution to each Lender:

 

(a)                                  no later than five (5) Business Days after the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default under Section 7.10 or, if any such Default or Event of Default shall exist, stating the nature and status of such event; it being understood that the obligation under this Section 6.02(a) shall be satisfied regardless of whether such certificate is obtained if Holdings and its Restricted Subsidiaries shall have used commercially reasonable efforts to obtain such certificate;

 

(b)                                 no later than five (5) Business Days after the delivery of the financial statements referred to in Section 6.01(a) and Section 6.01(b), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower (which shall set forth reasonably detailed calculations (A) demonstrating compliance with Section 7.10 and (B) in the case of any delivery of financial statements under Section 6.01(a) in respect of any Fiscal Year of the Borrower ending on or after December 27, 2011, of Excess Cash Flow for such Fiscal Year);

 

(c)                                  promptly after the same are publicly available, (i) after a Qualifying IPO copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders, and (ii) copies of all annual, regular, periodic and special reports and registration statements that Holdings and any Restricted Subsidiary (or such other party that is the subject of such Qualifying IPO) may file or be required to file, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;

 

(d)                                 promptly after the furnishing thereof, copies of any requests or notices received by Holdings or any Restricted Subsidiary (other than in the ordinary course of business) from, or statement or report furnished to, any holder of debt securities of Holdings or any Restricted Subsidiary pursuant to the terms of any Unsecured Financing Documentation with respect to a Unsecured Financing Obligation and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;

 

(e)                                  promptly after the receipt thereof by Holdings or any Restricted Subsidiary, copies of each notice or other written correspondence received from the SEC (or comparable agency in any applicable non-US jurisdiction) concerning any investigation or other material inquiry by such agency regarding financial or other operational results of Holdings or any Restricted Subsidiary;

 

(f)                                    together with the delivery of each Compliance Certificate pursuant to Section 6.02(b), (i) a description of each event, condition or circumstance during the last Fiscal Quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) and (ii) Membership Reports for each of the golf club and non-golf club (i.e., business and sporting club) businesses (it being understood that for purposes of the Company Materials described below in this Section 6.02, no

 

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Membership Report shall be suitable for Public Lenders and shall be suitable only for posting on a portion of the Platform designated for “Private Investors”);

 

(g)                                 promptly after the Borrower has notified the Administrative Agent of any intention by Holdings or any Restricted Subsidiary to treat the Loans and/or Letters of Credit and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form; and

 

(h)                                 promptly, such additional information regarding the business, legal, financial or corporate affairs of Holdings or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01 and Section 6.02(b), Section 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on behalf of Holdings and its Restricted Subsidiaries’ on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (A) upon the request of the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender and (B) the Borrower shall provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.  Except for Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Holdings and its Restricted Subsidiaries with any such request for delivery, and each Lender shall be solely responsible for requesting delivery of or maintaining its copies of such documents.  Holdings (on behalf of itself and each other Subsidiary) hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings and its Subsidiaries hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Holdings and its Subsidiaries or their respective securities) (each, a “Public Lender”).  Holdings hereby agrees (on behalf of itself and each other Subsidiary) that (w) all Company Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” Holdings (on behalf of itself and each other Subsidiary) shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat the Company Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to Holdings and each Subsidiary for purposes of United States Federal and state securities laws; (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated for “Public Investors;” and (z) the Administrative Agent and the Arranger shall be entitled to treat the Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform designated for “Private Investors.”

 

Section 6.03.                             Notices.  Promptly notify the Administrative Agent:

 

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(a)                                  of the occurrence of any Default or Event of Default;

 

(b)                                 of any matter that has resulted or that could reasonably be expected to result in Holdings or any Restricted Subsidiary incurring liabilities (including Environmental Liabilities) in excess of $5,000,000 individually or $10,000,000 in the aggregate, arising out of or resulting from (i) breach or non-performance of, or any default under, a Contractual Obligation of Holdings or any Restricted Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between Holdings or any Restricted Subsidiary and any Governmental Authority; (iii) the commencement of, or any adverse development in, any litigation or proceeding affecting Holdings or any Restricted Subsidiary, including pursuant to any applicable Environmental Laws or the assertion or occurrence of any alleged noncompliance by Holdings or any Restricted Subsidiary with any Environmental Law or Environmental Permit; (iv) the occurrence of any ERISA Event (or similar event with respect to a Foreign Plan); and (v) any condition associated with the Release or threatened Release of Hazardous Materials or a violation of Environmental Laws.

 

Each notice pursuant to this Section 6.03 shall be accompanied by a written statement of a Responsible Officer of the Borrower (x) that such notice is being delivered pursuant to this Section 6.03 and (y) setting forth details of the occurrence referred to therein and stating what action Holdings or the applicable Restricted Subsidiary has taken and proposes to take with respect thereto.

 

Section 6.04.                             Payment of Obligations; Material Agreements; Liquor Licenses.  (a) Pay, discharge or otherwise satisfy as the same shall become due and payable, all material obligations and liabilities (including Taxes) of Holdings and each Restricted Subsidiary; provided that  Holdings and each such Restricted Subsidiary shall have the right to contest such obligations in good faith, by appropriate proceedings promptly instituted and diligently conducted, so long as reserves are maintained to the extent required by GAAP.

 

(b)                                 Observe and perform all material obligations imposed upon Holdings and each Restricted Subsidiary under the terms of any Material Agreement and enforce all of the material terms, covenants and conditions contained in such Material Agreement, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

(c)                                  Maintain all Liquor Licenses necessary to serve or sell liquor, beer, wine and other alcoholic beverages from any restaurants, snack bars, bars, mini bars, lounges and other food and beverage sales locations located within any of the Material Real Properties, except as could not reasonably be expected to have a Material Adverse Effect.

 

(d)                                 With respect to any Liquor License necessary to serve or sell liquor, beer, wine and other alcoholic beverages from any restaurants, snack bars, bars, mini bars, lounges and other food and beverage sales locations located within any of the Material Real Properties, to the extent that any such Liquor License is held by a Person other than Holdings and its Subsidiaries (including not-for-profit corporations and other legal entities Controlled by Affiliates of Holdings and its Subsidiaries), Holdings or the applicable Subsidiary shall enter into a Liquor License Arrangement (including, without limitation, a management or concession agreement) reasonably satisfactory to the Administrative Agent with respect to each such Liquor License.

 

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Section 6.05.                             Preservation of Existence, Etc.

 

(a)                                  Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization, except in a transaction permitted by Section 7.04 or Section 7.05, (b) take all reasonable action to maintain all rights, privileges (including its good standing), Permits, licenses and franchises necessary or desirable in the normal conduct of the business of Holdings and each Restricted Subsidiary, and (c) preserve or renew all of the Material Intellectual Property of Holdings and each Restricted Subsidiary that is necessary in the operation of the business of Holdings or any Restricted Subsidiary.

 

Section 6.06.                             Maintenance of Properties.  Except if the failure to do so could not reasonably be expected to have a Material Adverse Effect or as may be required under a Lease of property, maintain, preserve and protect all properties and equipment necessary in the operation of the business of Holdings and each Restricted Subsidiary in good working order, repair and condition (ordinary wear and tear excepted).

 

Section 6.07.                             Maintenance of Insurance.  (A) Maintain insurance, with financially sound and reputable insurance companies, in respect of the properties and business of Holdings and each Restricted Subsidiary to protect against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business as Holdings or the applicable Restricted Subsidiary, and of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Holdings and its Restricted Subsidiaries) as are customarily carried by Persons engaged in similiar business and owning similar properties in the same geographic areas as Holdings or the applicable Restricted Subsidiary and (B) all such insurance with respect to any Collateral shall name the Administrative Agent (on behalf of the Secured Parties ) as mortgagee, loss payee or sole loss payee, as applicable (in the case of property insurance with respect to Collateral), or additional insured (in the case of liability insurance).

 

Section 6.08.                             Compliance With Laws.  Comply with all requirements of Laws and all orders, writs, injunctions and decrees applicable to Holdings and each Restricted Subsidiary or to its business or property, except if the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

 

Section 6.09.                             Books and Records.  Maintain proper books of record and account (in which full, true and correct entries shall be made of all material financial transactions and matters involving the assets and business of Holdings and its Restricted Subsidiaries) in a manner that permits the preparation of financial statements in accordance with GAAP (in jurisdictions where compliance with GAAP is required).

 

Section 6.10.                             Inspection and Appraisal Rights.  Permit representatives and independent contractors of the Administrative Agent and each Lender to

 

(a)                                  visit and inspect the properties of Holdings and any of its Restricted Subsidiaries to examine the corporate, financial and operating records of Holdings or any such Restricted Subsidiary and make copies thereof or abstracts therefrom, and to discuss the affairs, finances and accounts of Holdings or any of its Restricted Subsidiaries with its directors, officers, and independent public accountants, all at the expense of the Loan Parties upon reasonable notice and at such times during normal business hours and as often as may be reasonably requested; provided that, excluding any such visits and inspections during the continuation of a Default or

 

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Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights under this Section 6.10(a) and the Administrative Agent shall not exercise such rights more often than two (2) times during any calendar year absent the existence of a Default or Event of Default; provided, further, that when a Default or Event of Default has occurred and is continuing the Administrative Agent or any such Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours and upon prior notice;

 

(b)                                 conduct, or cause to be conducted, at the expense of the Loan Parties and upon the reasonable request of the Administrative Agent, such investigations, inspections and reviews as the Administrative Agent shall reasonably request, and provide the Administrative Agent with information necessary to conduct appraisals (provided that such appraisals shall be at the expense of the Administrative Agent absent the continuation of a Default or Event of Default), in each case, with respect to any property owned by Holdings or any Restricted Subsidiary, all upon notice and at such times during normal business hours and as often as may be reasonably requested; provided that, excluding any such investigations, inspections, reviews and appraisals during the continuation of a Default or Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights under this Section 6.10(b) and the Administrative Agent shall not exercise such rights with respect to any one property more often than one (1) time during any calendar year absent the existence of a Default or Event of Default; provided, further, that when a Default or Event of Default has occurred and is continuing the Administrative Agent or any such Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours and upon prior notice; and

 

(c)                                  The Administrative Agent and the Lenders shall give the Borrower reasonable prior notice of and the right to participate in any discussions with Holdings’ or any Restricted Subsidiary’s accountants.

 

Section 6.11.                             Use of Proceeds.

 

(a)                                  Use the proceeds of the Term Loans for the Transactions.

 

(b)                                 Use the proceeds of the Revolving Credit Facility to provide ongoing working capital and for other general corporate purposes of the Restricted Subsidiaries.

 

(c)                                  Use the proceeds of the New Term Loans (subject to Section 2.14) made after the Closing Date to provide ongoing working capital and for other general corporate purposes of the Restricted Subsidiaries.

 

Section 6.12.                             Covenant To Guarantee Obligations And Give Security.

 

(a)                                  Upon (x) the formation or acquisition of any new direct or indirect Subsidiary (other than an Excluded Subsidiary or Unrestricted Subsidiary) of the Borrower, (y) any Subsidiary that is not a Guarantor providing a guarantee of any Unsecured Financing Obligations or (z) any Subsidiary formerly designated as an Unrestricted Subsidiary (other than an Excluded Subsidiary) that is no longer designated as such, the Loan Parties shall, in each case at their expense:

 

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(i)                                     as soon as reasonably practicable and in any case on or prior to thirty (30) days after such formation, acquisition, designation or Guarantee (or such longer period as the Administrative Agent may agree in its sole discretion):

 

(A)                              cause each such Subsidiary to furnish to the Administrative Agent a description of any Material Real Property owned by such Subsidiary in detail reasonably satisfactory to the Administrative Agent;

 

(B)                                cause each such Subsidiary to duly execute and deliver to the Administrative Agent (other than with respect to Excluded Assets) (i) a supplement to the Guaranty and Security Agreement or other Collateral Documents, in each case, in form and substance reasonably satisfactory to the Administrative Agent, Guaranteeing the Obligations of the Borrower; (ii) Intellectual Property Security Agreements and other Collateral Documents (other than Mortgages), as specified by the Administrative Agent and (iii) Mortgages with respect to Material Real Property in accordance with Section 6.12(b), in each case granting a Lien in substantially all personal property of such Subsidiary and all Material Real Property, securing the Obligations of such Subsidiary under its Guaranty and Security Agreement;

 

(C)                                cause each such Subsidiary to deliver (other than with respect to Excluded Assets) any and all certificates representing Equity Interests directly owned by such Subsidiary or, if applicable in the case of Equity Interests of Foreign Subsidiaries, cause the legal representative(s) of such Subsidiary to register the transfer of the Equity Interests in the relevant share registers of such Subsidiary, in each applicable case accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and, to the extent required by the Guaranty and Security Agreement or other Collateral Documents, instruments, if any, evidencing the intercompany debt held by such Subsidiary, if any, endorsed in blank to the Administrative Agent or accompanied by other appropriate instruments of transfer;

 

(D)                               take and cause such Subsidiary to take whatever reasonable actions (including the filing of UCC financing statements (or comparable documents or instruments under other applicable Law) and delivery of certificates evidencing stock and membership interests) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties required to be subject to the Collateral Documents pursuant to this Section 6.12; and

 

(ii)                                  if requested, as soon as reasonably practicable and in any case on or prior to thirty (30) days after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent a signed copy of customary legal opinions, addressed to the Administrative Agent and the other Secured Parties (and their respective participants, successors and assigns), of counsel for the Loan Parties that is reasonably

 

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acceptable to the Administrative Agent as to such matters as the Administrative Agent may reasonably request.

 

(b)                                 Upon the acquisition of any Material Real Property by any Loan Party, or if otherwise required by this Section 6.12, if such Material Real Property shall not already be subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties, the relevant Loan Party, as the case may be, shall give notice thereof to the Administrative Agent and shall cause such Material Real Property to be subjected to a Lien securing the Obligations and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien in accordance with the Mortgage Requirement within sixty (60) days after such request (or such longer period as the Administrative Agent may agree in its reasonable discretion).

 

(c)                                  Concurrently with the delivery of each Compliance Certificate pursuant to Section 6.02(b) in respect of financial statements delivered pursuant to Section 6.01(a) execute and deliver to the Administrative Agent an appropriate Intellectual Property Security Agreement with respect to all Patents (as defined in the Guaranty and Security Agreement) and Trademarks (as defined in the Guaranty and Security Agreement) registered or pending with the United States Patent and Trademark Office and registered or pending Copyrights (as defined in the Guaranty and Security Agreement) with the United States Copyright Office constituting After Acquired Intellectual Property (as defined in the Guaranty and Security Agreement) that is Material Intellectual Property owned by it or any Guarantor as of the last day of the period for which such Compliance Certificate is delivered, to the extent that such After Acquired Intellectual Property that is Material Intellectual Property is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it or such Guarantor.  In each case, the Borrower will, and will cause each Loan Party to, promptly cooperate as necessary to enable the Administrative Agent to make any necessary recordations with the US Copyright Office or the US Patent and Trademark Office, as appropriate, with respect to such Material Intellectual Property.

 

(d)                                 Notwithstanding the foregoing provisions of this Section 6.12 and the provisions of any Loan Document, the Administrative Agent shall not take, and the Loan Parties shall not be required to take (i) any steps to grant a security interest in any Excluded Assets or (ii) any steps to perfect a Lien with respect to any Excluded Perfection Assets except, in the case of this clause (ii), as may be set forth in the Guaranty and Security Agreement.

 

Section 6.13.                             Control Accounts, Approved Deposit Accounts.  (a) Each Loan Party shall (i) deposit in an Approved Deposit Account all cash it receives, (ii) not establish or maintain any Securities Account that is not a Control Account and (iii) not establish or maintain any Deposit Account other than with a Deposit Account Bank; provided that the Loan Parties may maintain (A) payroll, withholding tax and other fiduciary accounts (including accounts holding funds for the benefit of the owners of managed clubs) that are not Approved Deposit Accounts or Control Accounts and (B) other accounts that are not Approved Deposit Accounts or Control Accounts, so long as the aggregate balance in all such other accounts pursuant to this sub clause (B) collectively does not exceed $2,500,000 at any time outstanding.

 

(b)                                 The Administrative Agent may establish one or more Cash Collateral Accounts with such depositaries and Securities Intermediaries as it in its sole discretion shall determine; provided that no Cash Collateral Account shall be required to be established with respect to the assets of any Excluded Subsidiary.  The Borrower agrees that each such Cash

 

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Collateral Account shall meet the requirements of the definition of “Cash Collateral Account”.  Without limiting the foregoing, funds on deposit in any Cash Collateral Account may be invested (but the Administrative Agent shall be under no obligation to make any such investment) in Cash Equivalents at the direction of the Administrative Agent and, except during the continuance of a Default or Event of Default, the Administrative Agent agrees with the Borrower to issue Entitlement Orders for such investments in Cash Equivalents as requested by the Borrower; provided that the Administrative Agent shall not have any responsibility for, or bear any risk of loss of, any such investment or income thereon.  None of Holdings or any Restricted Subsidiary and no Person claiming on behalf of or through Holdings or any Restricted Subsidiary shall have any right to demand payment of any funds held in any Cash Collateral Account at any time prior to the termination of all outstanding Letters of Credit and the payment in full of all then outstanding and payable monetary Obligations.  The Administrative Agent shall apply all funds on deposit in a Cash Collateral Account as provided in Section 8.03.

 

Section 6.14.                             Compliance with Environmental Laws.  Except, in each case, to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect, (a) comply, and take all reasonable actions to cause all lessees and other Persons operating or occupying its properties to comply, in all respects, with all applicable Environmental Laws and Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its operations and properties; and (c) in each case to the extent required by Environmental Laws, conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws.

 

Section 6.15.                             Further Assurances.  Promptly upon reasonable request by the Administrative Agent, or any Lender through the Administrative Agent, (i) correct any defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time for the purposes of perfecting the rights of the Administrative Agent for the benefit of the Secured Parties with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds or products thereof or with respect to any other property or assets hereafter acquired by the Borrower or any other Loan Party that is required to be part of the Collateral to the extent required by Section 6.12 or the Collateral Documents), in each case subject to the limitations and exceptions set forth in Section 6.12 and in the Collateral Documents.

 

Section 6.16.                             Maintenance of Ratings.  Use commercially reasonable efforts to maintain corporate credit/corporate family ratings and a rating of the Facilities by each of S&P and Moody’s.

 

Section 6.17.                             Designation of Subsidiaries.  (a)  The board of directors of Holdings may at any time designate any Restricted Subsidiary (other than Holdings or the Borrower) as an Unrestricted Subsidiary (it being understood that no Restricted Subsidiary may be designated as a Dormant Subsidiary); provided that (i) immediately before and after giving effect to such designation no Default or Event of Default shall have occurred and be continuing or would result therefrom; (ii) such Subsidiary shall be a Non-Recourse Subsidiary; (iii) no Restricted Subsidiary that was previously designated as an Unrestricted Subsidiary may be subsequently re-designated

 

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as an Unrestricted Subsidiary; (iv) no Subsidiary may be designated as an Unrestricted Subsidiary if, after the effective date of such designation, it remains or becomes a “restricted subsidiary” or guarantor for the purpose of any Unsecured Financing; (v) immediately after giving effect to such designation, Holdings and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants set forth in Section 7.10; (vi) with respect to the designation of any Unrestricted Subsidiary that will constitute a Prepayment Unrestricted Subsidiary, (A) immediately after giving effect to such designation, the Total Leverage Ratio of Holdings and its Restricted Subsidiaries on a Pro Forma Basis shall be lower than the Total Leverage Ratio in effect immediately prior to giving effect to such designation, (B) immediately after giving effect to such designation, Holdings and its Restricted Subsidiaries shall be in compliance with Section 7.02(q) and (C) such Prepayment Unrestricted Subsidiary shall be designated solely in contemplation of a Disposition of the property or assets of, or an incurrence or issuance of Indebtedness by, such Prepayment Unrestricted Subsidiary and promptly, but in no event later than 30 days, after the effective date of the designation of each Prepayment Unrestricted Subsidiary, the Borrower shall make a prepayment of the Loans from the Net Cash Proceeds resulting from such Disposition or Indebtedness in accordance with Section 2.05(b); (vii) with respect to the designation of any Unrestricted Subsidiary that will constitute a Non-Prepayment Unrestricted Subsidiary, after giving effect to such designation, all Investments made by Holdings and its Restricted Subsidiaries in Non-Prepayment Unrestricted Subsidiaries, taken together, shall not exceed the amount permitted under Section 7.02(l); and (viii) immediately before and after giving effect to such designation, the total assets (excluding cash or Cash Equivalents to the extent received as an Investment from Holdings or any of its Restricted Subsidiaries permitted under Section 7.02(l)) and total revenues of all Unrestricted Subsidiaries, taken together, shall not exceed 7.5% of the Borrower’s consolidated total assets or consolidated total revenues, respectively.  For purposes of clause (vi)(B) above, the designation of a Restricted Subsidiary as a Prepayment Unrestricted Subsidiary (it being understood that no Restricted Subsidiary may be designated as a Dormant Subsidiary) shall be deemed to be an Investment by Holdings and each applicable Restricted Subsidiary (as applicable) in an amount equal to the Fair Market Value of the total assets of such Unrestricted Subsidiary at the date of designation.

 

(b)                                 The board of directors of Holdings may at any time designate any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing or would result therefrom; (ii) as a condition precedent to the effectiveness of any such designation, the Borrower shall have complied with Section 6.12 with respect to such newly designated Restricted Subsidiary; (iii) immediately after giving effect to such designation, Holdings and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants set forth in Section 7.10 (and, as a condition precedent to the effectiveness of any such designation, the Borrower shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance); and (iv) no Unrestricted Subsidiary that was previously designated as an Restricted Subsidiary may be subsequently re-designated as an Unrestricted Subsidiary.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time and such incurrence must comply with Section 7.03 and Section 7.01, respectively.

 

(c)                                  As a condition precedent to the effectiveness of any designation pursuant to this Section 6.17, the Borrower shall deliver to the Administrative Agent a certificate setting

 

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forth in reasonable detail the calculations demonstrating compliance with the applicable clause of this Section 6.17 no less than five (5) Business Days prior to such designation.

 

Section 6.18.                             Post Closing Matters.  Execute and deliver the documents and complete the tasks set forth on Schedule 6.18, in each case within the time limits specified on such schedule (unless the Administrative Agent, in its sole discretion, shall have agreed to any particular longer period).

 

ARTICLE 7

 

NEGATIVE COVENANTS

 

So long as (a) any Lender shall have any Commitment hereunder, (b) any Loan or other Obligation hereunder that is accrued and payable (and not contingent or inchoate) shall remain unpaid or unsatisfied, or (c) any Letter of Credit shall remain outstanding, Holdings and the Borrower shall not, and shall not permit any other Restricted Subsidiary to directly or indirectly:

 

Section 7.01.                             Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

 

(a)                                  (i) Liens pursuant to any Loan Document and (ii) Liens on cash or deposits granted in favor of the Swing Line Lender or the L/C Issuer to cash collateralize any Defaulting Lender’s participation in Letters of Credit or Swing Line Loans, respectively, as contemplated by Section 2.03(a)(ii)(E) and 2.04(b), and 2.16(a)(ii), respectively;

 

(b)                                 Liens existing on the date hereof and listed on Schedule 7.01(b) and any modifications, replacements, renewals or extensions thereof; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof, and (ii) the modification, replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens (if such obligations constitute Indebtedness) is permitted by Section 7.03;

 

(c)                                  Liens for taxes, assessments or governmental charges not yet due and payable that are being contested in good faith and by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of Holdings and the applicable Restricted Subsidiary to the extent required in accordance with GAAP;

 

(d)                                 statutory Liens and any Liens arising by operation of law in each case of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business that secure amounts not overdue for a period of more than thirty (30) days; provided that such Lien is being contested in good faith and by appropriate actions diligently conducted and adequate reserves with respect thereto are maintained on the books of Holdings and the applicable Restricted Subsidiary to the extent required in accordance with GAAP;

 

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(e)                                  (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, (ii) pledges and deposits in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies, in each case payable to insurance carriers that provide insurance to Holdings or any Restricted Subsidiary or (iii) obligations in respect of letters of credit or bank guarantees that have been posted by the Borrower or any other Restricted Subsidiary to support the payments of the items set forth in clauses (i) and (ii) of this Section 7.01(e).

 

(f)                                    (i) deposits to secure the performance of bids, trade contracts, governmental contracts, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations that do not materially or adversely affect the value or use of such property), in each case, other than Indebtedness, and incurred in the ordinary course of business or (ii) obligations in respect of letters of credit or bank guarantees that have been posted to support payment of the items set forth in clause (i) of this Section 7.01(f);

 

(g)                                 matters of record affecting title to any owned or leased real property and survey exceptions, encroachments, protrusions, recorded and unrecorded servitudes, easements, restrictions, reservations, licenses, rights-of-way, sewers, electric lines, telegraphs and telephone lines, variations in area or measurement, rights of parties in possession under written leases or occupancy agreements, and other title defects and non-monetary encumbrances affecting real property, and zoning, building or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties, in each case (i) incurred on or prior to the Closing Date and set forth on a title insurance policy that is in form and substance reasonably satisfactory to the Administrative Agent and delivered to the Administrative Agent on the Closing Date or (ii) incurred after the Closing Date and not incurred in the connection with Indebtedness and which could not, individually or in the aggregate, materially and adversely affect the value of the subject property or materially impair their use in the operation of the business of any Restricted Subsidiary;

 

(h)                                 Liens securing judgments for the payment of money not constituting a Default or Event of Default under Section 8.01(h);

 

(i)                                     Liens securing Indebtedness permitted under Section 7.03(f); provided that (i) such Liens attach concurrently with or within one hundred eighty (180) days after the acquisition, repair, replacement, construction or improvement (as applicable) of the property subject to such Liens (except in the case of any Permitted Refinancing) and (ii) such Liens do not at any time encumber any property except for accessions to such property other than the property financed by such Indebtedness and the proceeds and the products thereof;

 

(j)                                     leases, licenses, subleases or sublicenses granted to other Persons in the ordinary course of business that (A) do not interfere in any material respect with the business of any Restricted Subsidiary (B) could not, individually or in the aggregate, materially and adversely affect the value of the subject property or materially impair its use in the operation of the business of any Restricted Subsidiary or (C) do not secure any

 

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Indebtedness of any Restricted Subsidiary and so long as such leases, licenses, subleases or sublicenses are expressly subject and subordinate to the Obligations;

 

(k)                                  Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(l)                                     Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes or (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off), in each case that are within the general parameters customary in the banking industry;

 

(m)                               Liens (i) (A) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02 to be applied against the purchase price for such Investment and (B) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case under this clause (i), solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien or on the date of any contract for such Investment or Disposition, and (ii) earnest money deposits of cash or Cash Equivalents made by Holdings or any Restricted Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;

 

(n)                                 Liens on property of any Restricted Subsidiary that is not a Loan Party securing Indebtedness of such Restricted Subsidiary permitted under Section 7.03;

 

(o)                                 (i) Liens in favor of the Borrower or a Subsidiary Guarantor securing Indebtedness permitted under Section 7.03(e) and (ii) Liens in favor of a Subsidiary that is not a Loan Party granted by another Subsidiary that is not a Loan Party, provided that any such Lien on Collateral shall be expressly junior in priority to the Liens on such Collateral granted to the Administrative Agent for the benefit of the Secured Parties under the Loan Documents and all documentation with respect to such lien priority shall be in the form and substance reasonably satisfactory to the Administrative Agent;

 

(p)                                 Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case, after the Closing Date (other than Liens on the Equity Interests of any Person that becomes a Subsidiary) and any modifications, replacements, renewals or extensions thereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and after-acquired property subjected to a Lien pursuant to terms existing at the time of such acquisition, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), (iii) the Indebtedness secured thereby (or, as applicable, any modifications, replacements, renewals or extension thereof) is permitted under Section 7.03, and (iv) in the case of Liens securing Indebtedness for borrowed money, such Indebtedness secured thereby does not exceed $25,000,000 at any one time outstanding; provided, further that if the property or Person so acquired is required to be pledged or to become a Guarantor, as applicable, pursuant to

 

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Section 6.12, any Liens with respect to such acquired property or on the assets of such acquired Person shall be required to be permitted under other clauses of this Section 7.01;

 

(q)                                 Liens arising from precautionary UCC financing statement filings (or similar filings under other applicable Law) arising out of Lease transactions entered into by any Restricted Subsidiary in the ordinary course of business; provided that such precautionary filings are made solely to protect lessors against the possibility of the judicial recharacterization of such Lease transactions as secured financing transactions;

 

(r)                                    Liens (i) arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by any Restricted Subsidiary in the ordinary course of business and not prohibited by this Agreement; and (ii) on specific items of inventory or other goods and the proceeds thereof securing such Restricted Subsidiary’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Restricted Subsidiary to facilitate the purchase, shipment or storage of such inventory or goods; and

 

(s)                                  Liens securing Indebtedness or other obligations outstanding in an aggregate principal amount not to exceed $2,500,000.

 

Section 7.02.                             Investments.  Make or hold any Investments, except:

 

(a)                                  Investments by Holdings and any Restricted Subsidiary in assets that were Cash Equivalents when such Investment was made;

 

(b)                                 loans or advances to officers, directors, members of management, and employees of Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary (i) in an aggregate amount not to exceed $1,000,000 at any time outstanding, for business-related travel, entertainment, relocation and analogous ordinary business purposes, or (ii) in connection with such officer’s, director’s, member of management’s or employee’s purchase of Equity Interests of Holdings (or any direct or indirect parent thereof) in an aggregate amount not to exceed $5,000,000 at any time outstanding (in each of clauses (i) and (ii), determined without regard to any write-downs or write-offs of such loans or advances);

 

(c)                                  Investments (i) by any Loan Party in any other Loan Party (other than Holdings) or (ii) by any Restricted Subsidiary that is not a Loan Party in any Loan Party (other than Holdings) or in any other Restricted Subsidiary that is also not a Loan Party;

 

(d)                                 Investments (i) consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and (ii) received in satisfaction or partial satisfaction thereof from financially troubled account debtors in the ordinary course of business;

 

(e)                                  Investments existing on the date hereof and described and listed on Schedule 7.02(e) and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms (existing on the date hereof) of such Investment or as otherwise permitted by this Section 7.02;

 

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(f)                                    Investments in Swap Contracts permitted by Section 7.03(h);

 

(g)                                 promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 7.05;

 

(h)                                 the purchase or other acquisition of all or substantially all of the assets or business of, any Person, or of assets constituting a business unit, a line of business or division of, any Person, or of the Equity Interests in a Person that, upon the consummation thereof, will be owned directly by the Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation); provided that, with respect to each such purchase or other acquisition made pursuant to this Section 7.02(h) (each of the foregoing, a “Permitted Acquisition”):

 

(i)                                     (A) each applicable Restricted Subsidiary and any such newly created or acquired Subsidiary shall, or will within the times specified herein, have complied with the applicable requirements of Section 6.12 to the extent required thereby, and (B) the aggregate amount of cash and non-cash consideration (including, without limitation, all transaction costs and all Indebtedness and other liabilities incurred or assumed in connection therewith) provided by Holdings or the Restricted Subsidiaries to make any such purchase or acquisition of assets that are not purchased or acquired (or do not become owned) by a Loan Party or in Equity Interests in Persons that do not become Loan Parties upon consummation of such purchase or acquisition shall not exceed the amount permitted under Section 7.02(l);

 

(ii)                                  immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) Holdings and its Restricted Subsidiaries shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.10, in each case as evidenced by a certificate from the Treasurer (or, if the Treasurer is not the chief financial officer, the chief financial officer) of the Borrower, with such financial covenant compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b) as though such purchase or other acquisition had been consummated as of the first day of the fiscal period covered thereby and including reasonably detailed calculations evidencing such compliance;

 

(iii)                               the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying that all of the requirements set forth in this clause (h) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition;

 

(iv)                              the lines of business of the Person that is (or the property that is to be) acquired shall be substantially the same lines of business as one or more of the principal businesses of Holdings and its Restricted Subsidiaries in the ordinary course or reasonably related thereto; and

 

(v)                                 such purchase or other acquisition was not preceded by, or effected pursuant to, a hostile offer.

 

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(i)                                     Investments in the ordinary course of business consisting of (i) endorsements for collection or deposit or (ii) customary trade arrangements with customers;

 

(j)                                     Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or disputes with, any Person arising in the ordinary course of business and upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;

 

(k)                                  loans and advances to Holdings or any direct or indirect parent thereof in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments permitted to be made to Holdings or any direct or indirect parent thereof in accordance with Section 7.06; provided that any Investment made under this Section 7.02(k) shall reduce dollar for dollar capacity to make Restricted Payments under Section 7.06;

 

(l)                                     Investments that do not exceed the Available Amount at the time of such Investment;

 

(m)                               Guarantees by Holdings or any Restricted Subsidiary of Leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case, entered into in the ordinary course of business;

 

(n)                                 Investments to the extent the consideration paid therefor consists solely of Equity Interests (other than Disqualified Equity Interests) of Holdings or any direct or indirect parent thereof;

 

(o)                                 Investments held by a Person that becomes a Restricted Subsidiary (or is merged, amalgamated or consolidated with or into a Restricted Subsidiary) pursuant to this Section 7.02 (and, if applicable, Section 7.04) after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation;

 

(p)                                 Investments in Joint Ventures set forth on Schedule 7.02(p), in each case, as in effect on the Closing Date; and

 

(q)                                 Investments resulting from the designation of one or more Prepayment Unrestricted Subsidiaries (other than Dormant Subsidiaries); provided that after giving effect to such Investment (i) the aggregate Fair Market Value of all property and assets that are transferred to, contributed to or otherwise held (as valued at the time of designation of each applicable Subsidiary pursuant to Section 6.17) by all Prepayment Unrestricted Subsidiaries (other than Dormant Subsidiaries), taken together, in each case, that were property or assets held by Holdings or its Subsidiaries on the Closing Date (excluding cash or Cash Equivalents to the extent the Investment thereof by Holdings or any of its Restricted Subsidiaries is permitted under Section 7.02(l)), shall not exceed $75,000,000 and (ii) neither the total assets (excluding cash or Cash Equivalents to the extent received as an Investment from Holdings or any of its Restricted Subsidiaries permitted under Section 7.02(l)) nor the total revenues of all Unrestricted Subsidiaries, in

 

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each case, taken together, shall exceed 7.5% of the Borrower’s consolidated total assets or consolidated total revenues.

 

Section 7.03.                             Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except:

 

(a)                                  The Senior Notes (including any guarantees thereof) issued on the Closing Date in an aggregate principal amount of up to $415,000,000 and any Permitted Refinancing thereof;

 

(b)                                 Indebtedness consisting of the Obligations under the Loan Documents;

 

(c)                                  Indebtedness outstanding on the date hereof and listed on Schedule 7.03(c) and any Permitted Refinancing thereof;

 

(d)                                 Guarantees by Holdings and any Restricted Subsidiary in respect of Indebtedness of Holdings or any Restricted Subsidiary that are permitted under this Section 7.03 and by Section 7.02; provided that (A) no Guarantee by any Subsidiary of any Indebtedness constituting an Unsecured Financing Obligation shall be permitted unless such Subsidiary shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the applicable Guaranty and Security Agreement and (B) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination provisions of such Indebtedness;

 

(e)                                  Indebtedness of any Restricted Subsidiary owing to any Restricted Subsidiary to the extent such Investment is permitted by Section 7.02; provided that all such Indebtedness of any Restricted Subsidiary to any Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations;

 

(f)                                    Attributable Indebtedness and purchase money obligations to finance the purchase, Lease, repair or improvement of fixed or capital assets within the limitations set forth in Section 7.01(i) and any Permitted Refinancing thereof; provided that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $20,000,000 plus, in respect of each 18-hole golf course owned by any Restricted Subsidiary, $300,000;

 

(g)                                 Indebtedness consisting of working capital facilities for Restricted Subsidiaries that are not Loan Parties in an aggregate principal amount at any time outstanding for all such Persons taken together not exceeding $5,000,000;

 

(h)                                 Indebtedness of a Loan Party (other than Holdings) in respect of Swap Contracts, including any increase from time to time in net obligations thereunder resulting from the termination of any such Swap Contract, and in any case not incurred for speculative purposes;

 

(i)                                     (i) Indebtedness (A) assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, or (B) owed to the seller of any property acquired in a Permitted

 

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Acquisition; provided that any Indebtedness under clause (i)(B) above shall (1) be unsecured and subordinated, which subordination shall be on terms reasonably satisfactory to the Administrative Agent, (2) not be scheduled to mature prior to the date that is ninety-one (91) days after the Latest Maturity Date, (3) have no scheduled amortization or payments of principal (other than customary offers to purchase) prior to the date that is ninety-one (91) days after the Latest Maturity Date, provided further that both immediately prior and after giving effect to any Indebtedness incurred pursuant to clause (A) or (B) (1) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (2) Holdings and its Restricted Subsidiaries shall be in Pro Forma Compliance with (x) the covenants set forth in Section 7.10 and (y) the Total Leverage Ratio that is 1.00 less than the ratio that Holdings and its Restricted Subsidiaries were required to maintain pursuant to Section 7.10(a), in each case, as of the end of the Test Period then last ended, after giving effect to such Permitted Acquisition and the assumption, incurrence or issuance of such Indebtedness and the use of proceeds thereof and (ii) any Permitted Refinancing thereof;

 

(j)                                     Indebtedness representing deferred compensation to employees of Holdings or any Restricted Subsidiary;

 

(k)                                  Indebtedness incurred in a Permitted Acquisition or Disposition under agreements providing for indemnification, the adjustment of the purchase price or similar adjustments;

 

(l)                                     Indebtedness consisting of obligations of Holdings or any Restricted Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;

 

(m)                               Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts;

 

(n)                                 Indebtedness of a Loan Party (other than Holdings) in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;

 

(o)                                 Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

 

(p)                                 Indebtedness incurred by Holdings and any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that upon any drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 20 days following such drawing or incurrence;

 

(q)                                 obligations in respect of surety, stay, customs and appeal bonds, performance bonds and performance and completion guarantees provided by Holdings or

 

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any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business;

 

(r)                                    (i) Permitted Unsecured Indebtedness to the extent the Net Cash Proceeds of such Permitted Unsecured Indebtedness are utilized within ninety (90) days of the incurrence thereof to finance a Permitted Acquisition (or if not so utilized within such time period, solely to the extent the Net Cash Proceeds of such Permitted Unsecured Indebtedness are applied to prepay Term Loans pursuant to Section 2.05(b)(iv)), in each case, so long as (x) Holdings and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants set forth in Section 7.10 and a Total Leverage Ratio that is 1.00 less than the ratio that Holdings and its Restricted Subsidiaries were required to maintain pursuant to Section 7.10(a) as of the end of the Test Period then last ended, after giving effect to such Permitted Acquisition and the assumption, incurrence or issuance of such Indebtedness and (y) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) any Permitted Refinancing thereof;

 

(s)                                  Indebtedness in respect of (x) any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business in an aggregate principal amount not to exceed $2,500,000 at any time outstanding or (y) any letters of credit issued in favor of the L/C Issuer or the Swing Line Lender to support any Defaulting Lender’s participation in Letters of Credit or Swing Line Loans, respectively, as contemplated by Section 2.03(a)(ii)(E) or 2.04(b), respectively;

 

(t)                                    Permitted Unsecured Indebtedness to finance any prepayment of the Loans pursuant to Section 2.05(a); provided that the aggregate principal amount of Permitted Unsecured Indebtedness so incurred may not exceed the amount of such prepayment;

 

(u)                                 Indebtedness incurred in the ordinary course of business in respect of obligations of any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; and

 

(v)                                 Indebtedness incurred by non-wholly owned Restricted Subsidiaries that were in existence on the Closing Date, so long as such Indebtedness is Non-Recourse Indebtedness with respect to Holdings and the other Restricted Subsidiaries, in an aggregate principal amount not to exceed $10,000,000.

 

Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness and the incurrence or accrual of Membership Deposit Liabilities shall, in each case, not be deemed to be an incurrence of Indebtedness for purposes of this Section 7.03.

 

Section 7.04.                             Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, except that:

 

(a)                                  any Subsidiary may merge with or liquidate into (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States, any state thereof or the District of Columbia (the “Jurisdictional Requirements”)); provided that the Borrower shall be the continuing or surviving Person

 

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or the continuing or surviving Person shall expressly assume the obligations of the Borrower under the Loan Documents in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Subsidiaries; provided that when any Subsidiary that is a Loan Party is merging with another Subsidiary, (A) a Loan Party (other than Holdings) shall be the continuing or surviving Person; or (B) to the extent constituting an Investment, such Investment must be an Investment permitted by Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;

 

(b)                                 any Subsidiary that is not a Loan Party may (i) merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of Holdings and its Restricted Subsidiaries; and

 

(c)                                  any Restricted Subsidiary may merge with any other Person in order to (i) effect an Investment permitted pursuant to Section 7.02 or a Disposition permitted pursuant to Section 7.05 (provided that (A) the continuing or surviving Person shall be a Subsidiary, which together with each of its Subsidiaries, shall have complied with the requirements of Section 6.12 and (B) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03); provided that if the Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (A) the Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (B) the Jurisdictional Requirements shall be satisfied, and (C) no Default or Event of Default shall have occurred and be continuing or would result therefrom.

 

Section 7.05.                             Dispositions.  Make any Disposition except:

 

(a)                                  Dispositions of obsolete, used, surplus or worn out property, whether now owned or hereafter acquired and Dispositions of property (other than real property) no longer used or useful in the conduct of the business of Holdings and its Restricted Subsidiaries, in each case, in the ordinary course of business;

 

(b)                                 Dispositions of inventory in the ordinary course of business;

 

(c)                                  Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;

 

(d)                                 Dispositions of property by Holdings or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (including any such Disposition effected pursuant to a merger, liquidation or dissolution permitted by Section 7.04); provided that, if the transferor of such property is a Loan Party, then (i) the transferee thereof must either be a Loan Party (other than Holdings) or (ii) such transaction is an Investment permitted under Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;

 

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(e)           Dispositions of Cash Equivalents;

 

(f)            Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business (it being understood that this clause (f) shall not permit Dispositions of accounts receivable through factoring or accounts receivables financing programs);

 

(g)           leases, subleases, licenses or sublicenses of property in the ordinary course of business that (A) do not interfere in any material respect with the business of any Restricted Subsidiary (B) could not, individually or in the aggregate, materially and adversely affect the value of the subject property or materially impair its use in the operation of the business of Holdings or any Restricted Subsidiary or (C) do not secure any Indebtedness of any Restricted Subsidiary and so long as such leases, licenses, subleases or sublicenses are expressly subject and subordinate to the Obligations;

 

(h)           transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;

 

(i)            Dispositions of property by any Restricted Subsidiary; provided that (i) at the time of such Disposition, no Default or Event of Default shall have occurred or be continuing or would therefrom, (ii) with respect to any Disposition pursuant to this Section 7.05(i) for a purchase price in excess of $5,000,000, the applicable Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received); and (iii) the Consolidated EBITDA of the Restricted Subsidiaries generated by, or associated with all such property Disposed of pursuant to this Section 7.05(i) in any Fiscal Year of the Borrower shall not exceed 10% of Consolidated EBITDA of Holdings and its Restricted Subsidiaries for the Fiscal Year of the Borrower most recently ended prior to the date of such Disposition;

 

(j)            Dispositions of Investments in Joint Ventures set forth on Schedule 7.02(p), to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements, in each case, as in effect on the Closing Date;

 

(k)           Dispositions in the ordinary course of business consisting of the abandonment of IP Rights which, in the reasonable good faith determination of any Restricted Subsidiary, are uneconomical, negligible, obsolete or otherwise not material in the conduct of the business of Holdings or any Restricted Subsidiary (it being understood and agreed that no Material Intellectual Property may be Disposed of in reliance on this clause (k));

 

(l)            Dispositions of Equity Interests in Dormant Subsidiaries; provided that at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing or would result therefrom; and

 

(m)          Dispositions consisting of a Sale Leaseback Transaction if the Indebtedness resulting or evidenced therefrom is permitted by Section 7.03.

 

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provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Section 7.05(d), 7.05(f), 7.05(h), 7.05(j), 7.05(k) and Section 7.05(l)), shall be for no less than the Fair Market Value of such property at the time of such Disposition.  To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent is hereby authorized by the Lenders to take any actions deemed appropriate in order to effect the foregoing.

 

Section 7.06.          Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment, except (subject to the proviso in Section 7.02(k)):

 

(a)           each Restricted Subsidiary may make Restricted Payments to (i) the Borrower and the Guarantors (other than Holdings) and (ii) to Persons (other than Holdings) that are holders of Equity Interests of such Restricted Subsidiary; provided that any amount paid to any holder that is not a Loan Party shall not exceed such holder’s relative ownership percentage of such class or type of Equity Interests);

 

(b)           the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of such Person;

 

(c)           the Restricted Subsidiaries may make Restricted Payments to Holdings:

 

(i)            the proceeds of which will be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) the Tax liability for each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns filed by or on behalf of Holdings or any direct or indirect parent thereof; provided that such proceeds are limited to the Tax liability attributable to the income of the Borrower and/or the other Restricted Subsidiaries or the Equity Interests of the Borrower held by Holdings, if any, that are part of the applicable tax group;

 

(ii)           the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) such entities’ operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties) attributable to the operations of the Borrower and/or the other Restricted Subsidiaries or the Equity Interests of the Borrower held by Holdings, in each case that are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $2,500,000 in any Fiscal Year of the Borrower plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and/or the other Restricted Subsidiaries;

 

(iii)          the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) (A) franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (B) customary salary, bonus and other

 

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benefits payable to officers and employees of Holdings or its Subsidiaries to the extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Borrower and/or the other Restricted Subsidiaries, in an aggregate amount for clauses (iii)(A) and (iii)(B) together not to exceed $2,000,000 in any Fiscal Year of the Borrower;

 

(iv)          the proceeds of which will be used by Holdings to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings held by any future, present or former employee, director, officer, member of management or consultant of Holdings or any direct or indirect parent thereof, or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made under this clause (c)(iv) does not exceed in any Fiscal Year $2,000,000; and provided, further, that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by Holdings (to the extent such proceeds are contributed to the Borrower);

 

(v)           to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment and (B) Holdings or the applicable parent company thereof shall, immediately following the closing or consummation thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Loan Party other than Holdings (or a Person that will become a Loan Party (other than Holdings) upon receipt of such contribution) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into a Loan Party (other than Holdings) in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12;

 

(vi)          the proceeds of which shall be used by Holdings to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings in an aggregate amount not to exceed $2,000,000 in any Fiscal Year of the Borrower; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith by the board of directors or the managing board, as the case may be, of the applicable Restricted Subsidiary (or any authorized committee thereof));

 

(vii)         the proceeds of which shall be used by Holdings to pay amounts of the type described in Section 7.08(c) and 7.08(d), in each case to the extent the applicable payment would be permitted under Section 7.08(c) or 7.08(d) if such payment were to be made by the Borrower and in lieu of such payment being made under Section 7.08(c) and 7.08(d); and

 

(d)           so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that does not exceed the sum of the Available Amount; provided that Holdings and its Restricted Subsidiaries shall be in Pro

 

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Forma Compliance with the covenants set forth in Section 7.10 after giving effect to such Restricted Payment and the use of proceeds thereof.

 

Section 7.07.          Change In Nature of Business.  Engage in any material line of business substantially different from those lines of business conducted by Holdings and its Restricted Subsidiaries on the date hereof or any business reasonably related or ancillary thereto.

 

Section 7.08.          Transactions With Affiliates.  Neither Holdings nor any Restricted Subsidiary shall enter into any transaction of any kind with any Affiliate, whether or not in the ordinary course of business, unless such transaction is (x) not otherwise prohibited under this Agreement and (y) upon terms no less favorable to Holdings or such Restricted Subsidiary, as the case may be, than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate; provided that nothing in this Section 7.08 shall be deemed to prohibit:

 

(a)           transactions among the Loan Parties or among the Loan Parties and any Person that becomes a Guarantor as a result of such transaction;

 

(b)           employment and severance arrangements between Holdings and its Restricted Subsidiaries and their respective officers and employees, as determined in good faith by the board of directors or senior management of the relevant Person;

 

(c)           the payment of customary fees and reimbursement of reasonable out-of-pocket costs of, and customary indemnities provided to or on behalf of, directors, officers and employees of Holdings or any direct or indirect parent thereof and the Restricted Subsidiaries, to the extent attributable to the ownership or operations of the Restricted Subsidiaries, as determined in good faith by the board of directors or senior management of the relevant Person;

 

(d)           so long as no Default or Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing or would result therefrom, payments to the Sponsor permitted pursuant to Section 7.06 of management, consulting, monitoring, advisory and other fees and indemnities and expenses pursuant to the Management Agreement in an aggregate amount not to exceed $2,000,000 in any Fiscal Year of the Borrower; and

 

(e)           payments to or from, and transactions with, Joint Ventures in the ordinary course of business.

 

Section 7.09.          Burdensome Agreements.  Enter into or permit to exist any Contractual Obligation (other than this Agreement or any other Loan Document, the Senior Notes Indenture or customary terms in any documentation providing for any Permitted Refinancing thereof, so long as the restrictions in any such Permitted Refinancing, taken as a whole, in the good faith judgment of the Borrower, are no more disadvantageous to the Lenders than the restrictions set forth in the Senior Notes Indenture) that limits the ability of (a) any Subsidiary to make Restricted Payments to the Borrower or any Subsidiary Guarantor or to otherwise transfer property to or invest in the Borrower or any Subsidiary Guarantor, or (b) the Borrower or any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties with respect to the Facilities and the Obligations under the Loan Documents; provided that the foregoing shall not apply to any Contractual Obligation that (i) (A) exists on the date hereof and is listed on Schedule 7.09 and (B) to the extent Contractual Obligations permitted by clause (A) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or refinancing of such Indebtedness so

 

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long as such renewal, extension or refinancing does not expand the scope of the restrictions described in clauses (A) or (B) that are contained in such Contractual Obligation, (ii) are binding on a Subsidiary at the time such Subsidiary first becomes a Restricted Subsidiary, so long as such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary, (iii) represent Indebtedness of a Restricted Subsidiary that is not a Loan Party which is permitted by Section 7.03 so long as such restrictions do not apply to any Loan Party, (iv) arise in connection with any Disposition permitted by Section 7.05, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property financed by or secured by such Indebtedness (and excluding in any event any Indebtedness constituting any Unsecured Financing) or that expressly permits Liens for the benefit of the Agents and the Lenders with respect to the credit facilities established hereunder and the Obligations under the Loan Documents on a senior basis without the requirement that such holders of such Indebtedness be secured by such Liens on an equal and ratable, or junior, basis, (vii) are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions apply only to the assets subject thereto, (viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.03(f) to the extent that such restrictions apply only to the property or assets securing such Indebtedness, (ix) are customary provisions restricting subletting or assignment of any Lease governing a leasehold interest, (x) are customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business or (xi) are restrictions that apply solely to cash or other deposits permitted under Section 7.01.

 

Section 7.10.          Financial Covenants.

 

(a)           Total Leverage Ratio.  Permit the Total Leverage Ratio as of the end of any Fiscal Quarter of Holdings and its Restricted Subsidiaries (beginning with the Fiscal Quarter ending March 22, 2011) set forth below to be greater than the ratio set forth below opposite such Fiscal Quarter:

 

Fiscal
Year

 

First
Quarter

 

Second
Quarter

 

Third
Quarter

 

Fourth
Quarter

2011

 

6.55 : 1.00

 

6.55 : 1.00

 

6.55 : 1.00

 

6.55 : 1.00

2012

 

6.15 : 1.00

 

6.15 : 1.00

 

6.15 : 1.00

 

6.15 : 1.00

2013

 

5.35 : 1.00

 

5.35 : 1.00

 

5.35 : 1.00

 

5.35 : 1.00

2014

 

4.75 : 1.00

 

4.75 : 1.00

 

4.75 : 1.00

 

4.75 : 1.00

2015

 

4.50 : 1.00

 

4.50 : 1.00

 

4.50 : 1.00

 

4.50 : 1.00

2016 and after

 

4.00 : 1.00

 

4.00 : 1.00

 

4.00 : 1.00

 

4.00 : 1.00

 

(b)           Interest Coverage Ratio.  Permit the Interest Coverage Ratio as of the end of any Fiscal Quarter of Holdings and its Restricted Subsidiaries (beginning with the Fiscal Quarter ending March 22, 2011) set forth below to be less than the ratio set forth below opposite such Fiscal Quarter:

 

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Fiscal
Year

 

First
Quarter

 

Second
Quarter

 

Third
Quarter

 

Fourth
Quarter

2011

 

1.85 : 1.00

 

1.85 : 1.00

 

1.85 : 1.00

 

1.85 : 1.00

2012

 

1.95 : 1.00

 

1.95 : 1.00

 

1.95 : 1.00

 

1.95 : 1.00

2013

 

2.15 : 1.00

 

2.15 : 1.00

 

2.15 : 1.00

 

2.15 : 1.00

2014

 

2.30 : 1.00

 

2.30 : 1.00

 

2.30 : 1.00

 

2.30 : 1.00

2015

 

2.50 : 1.00

 

2.50 : 1.00

 

2.50 : 1.00

 

2.50 : 1.00

2016 and after

 

2.75 : 1.00

 

2.75 : 1.00

 

2.75 : 1.00

 

2.75 : 1.00

 

Section 7.11.          Amendments of Certain Documents.  Amend or otherwise modify (a) any of its Organization Documents in a manner materially adverse to the Administrative Agent or the Lenders, or (b) any term or condition of any Unsecured Financing Documentation in any manner materially adverse to the interests of the Administrative Agent or the Lenders.

 

Section 7.12.          Accounting Changes.  Make any change in Fiscal Year of the Borrower or the Accounting Periods related thereto.

 

Section 7.13.          Prepayments, Etc. of Indebtedness.  Voluntarily prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that regularly scheduled payments of interest on the Senior Notes shall be permitted) any Unsecured Financing or make any payment in violation of any subordination terms of any Unsecured Financing Documentation, except (a) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, for an aggregate purchase price, or in an aggregate prepayment amount, not to exceed the Available Amount; provided that Holdings and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants set forth in Section 7.10 after giving effect to such payment, prepayment, redemption, purchase, defeasance or satisfaction; (b) a Permitted Refinancing thereof (including through exchange offers and similar transactions) and (c) the conversion of any Unsecured Financing to Equity Interests (other than Disqualified Equity Interests).

 

Section 7.14.          Limitations on Holdings and Certain Subsidiaries.  (a) Holdings shall not (i) create, incur, assume or suffer to exist any Liens on any Equity Interests of the Borrower (other than Liens permitted by Section 7.01(a)(i) and nonconsensual Liens to the extent permitted under Section 7.01) or (ii) conduct or engage in any operations or business other than (A) those incidental to its ownership of the Equity Interests of the Borrower, (B) the maintenance of its legal existence, (C) the performance of the Loan Documents and the Management Agreement, (D) any Qualifying IPO or any other issuance of its Equity Interests not prohibited by Article 7, (E) any transaction that Holdings is expressly permitted or contemplated to enter into or consummate under this Article 7 (including the incurrence of Permitted Unsecured Indebtedness), (F) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and its Subsidiaries and (G) holding any cash or property received in connection with Restricted Payments made by the Restricted Subsidiaries pursuant to Section 7.06 pending application thereof by Holdings; provided that, after giving effect to any transactions and related payments permitted under clauses (i) or (ii) above, Holdings shall not have any material assets (other than the Equity Interests of the Borrower) or any material liabilities (other than any Permitted Unsecured Indebtedness).

 

(b)           No Dormant Subsidiary shall (i) create, incur, assume or suffer to exist any Liens on its assets or property; (ii) conduct or engage in any operations or business

 

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(including, without limitation, making Investments or Restricted Payments or engaging in transactions with Affiliates), other than (A) those incidental to its dissolution or sale, (B) maintaining its legal existence, (C) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and its Subsidiaries or (iii) incur or hold any liabilities (including Indebtedness) other than (A) liabilities that, in the aggregate, are not material or (B) Membership Deposit Liabilities.  Neither the total assets nor the total revenues of all Dormant Subsidiaries, taken together, shall exceed 1% of the Borrower’s consolidated total assets or consolidated total revenues, respectively.

 

(c)           The aggregate Fair Market Value value of all property and assets transferred to, contributed to or otherwise held (as valued at the time of designation of each applicable Subsidiary pursuant to Section 6.17) by all Prepayment Unrestricted Subsidiaries (other than Dormant Subsidiaries), taken together, in each case, that were property or assets held by Holdings or its Subsidiaries on the Closing Date (excluding cash or Cash Equivalents to the extent the Investment thereof by Holdings or any of its Restricted Subsidiaries is permitted under Section 7.02(l)), does not exceed $75,00,000.  Neither the total assets (excluding cash or Cash Equivalents to the extent received as an Investment from Holdings or any of its Restricted Subsidiaries permitted under Section 7.02(l)) nor the total revenues of all Unrestricted Subsidiaries, taken together, shall exceed 7.5% of the Borrower’s consolidated total assets or consolidated total revenues, respectively.

 

Section 7.15.          Designated Senior Debt.  Designate any Indebtedness (other than under this Agreement and the other Loan Documents) of Holdings or its Restricted Subsidiaries as “Designated Senior Indebtedness” or “Senior Secured Financing” (or any comparable term) under, and as defined in, any Unsecured Financing Documentation.

 

Section 7.16.          Pension Plans.  With respect to any Pension Plan maintained by any ERISA Affiliate (excluding Holdings and its Restricted Subsidiaries), none of Holdings or any Restricted Subsidiary shall become a sponsor of any such plan, and no benefit liabilities under any such plan shall be transferred to a Pension Plan maintained by Holdings or any Restricted Subsidiary.

 

ARTICLE 8

 

EVENTS OF DEFAULT AND REMEDIES

 

Section 8.01.          Events of Default.  Any of the following shall constitute an Event of Default:

 

(a)           Non-Payment.  The Borrower or any other Loan Party fails to pay (i) when due, any amount of principal of any Loan or any L/C Borrowing, (ii) any amounts due under Section 2.16(a) within two (2) Business Days following the Administrative Agent’s demand, or (iii) within five (5) Business Days after the same becomes due, any interest on any Loan or any other amount payable hereunder or with respect to any other Loan Document; or

 

(b)           Specific Covenants.  Holdings or any Restricted Subsidiary fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, Section 6.02(b), Section 6.03(a), Section 6.05(a) or Section 6.11 or Article 7; or

 

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(c)           Other Defaults.  Holdings or any Restricted Subsidiary fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document and applicable to it and such failure continues for thirty (30) days after notice thereof by the Administrative Agent to the Borrower; or

 

(d)           Representations and Warranties.  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Holdings or any Restricted Subsidiary in this Agreement, any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

 

(e)           Cross-Default.  Holdings or any Restricted Subsidiary (i) fails to make any payment beyond any applicable grace period with respect thereto (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Indebtedness (other than in respect of the Obligations), or (ii) fails to observe or perform any other agreement or condition relating to any such Material Indebtedness, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Material Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(ii) shall not apply to secured Material Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Material Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Material Indebtedness; or

 

(f)            Insolvency Proceedings, Etc.  Holdings or any Restricted Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, examiner, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, examiner, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding or any similar steps or proceedings under Debtor Relief Laws applicable to such Person; or

 

(g)           Inability To Pay Debts; Attachment.  (i) Holdings or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within sixty (60) days after its issue or levy; or

 

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(h)           Judgments.  There is entered against Holdings or any Restricted Subsidiary one or more final judgments or orders for the payment of money in an aggregate amount exceeding $25,000,000 (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and does not deny coverage) and there is a period of sixty (60) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

 

(i)            ERISA.  An ERISA Event shall have occurred (or a similar event shall have occurred with respect to a Foreign Plan) that, when taken together with all other ERISA Events that have occurred (and similar events that have occurred with respect to Foreign Plans), could reasonably be expected to result in a Material Adverse Effect; or

 

(j)            Invalidity of Loan Documents.  Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or Section 7.05) or satisfaction in full of all the Obligations, ceases to be in full force and effect; or Holdings or any Restricted Subsidiary contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments or as a result of a transaction permitted hereunder or thereunder (including under Section 7.04 or Section 7.05)), or purports in writing to revoke or rescind any Loan Document; or

 

(k)           Change of Control.  There occurs any Change of Control; or

 

(l)            Collateral Documents.  Any Collateral Document after delivery thereof pursuant to Section 4.01 or Sections 6.12 and 6.18 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien on and security interest in the Collateral covered thereby, subject only to nonconsensual Permitted Prior Liens, or any Loan Party shall assert in writing such invalidity or lack of perfection or priority; or

 

(m)          Material Agreements.  There occurs any termination of a Material Agreement that could reasonably be expected to result in a Material Adverse Effect.

 

Section 8.02.          Remedies upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent may, and at the request of the Required Lenders, shall, take any or all of the following actions:

 

(a)           declare the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Commitments and obligation shall be terminated;

 

(b)           declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;

 

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(c)           require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and

 

(d)           exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;

 

provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to Holdings or any Restricted Subsidiary under the Bankruptcy Code of the United States or any similar Debtor Relief Laws, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Loan Parties to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

 

Section 8.03.          Application Of Funds.  After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:

 

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs payable under Section 10.04 and amounts payable under Article 3, but not including principal of or interest on any Loan) payable to the Administrative Agent in its capacity as such;

 

Second, to the payment in full of the Unfunded Advances/Participations (the amounts so applied to be distributed between or among the Administrative Agent, the Swing Line Lender and any L/C Issuer pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any distribution);

 

Third, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.04 and amounts payable under Article 3), ratably among them in proportion to the amounts described in this clause Third payable to them;

 

Fourth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Revolving Credit Loans and L/C Borrowings, ratably among the Revolving Credit Lenders in proportion to the respective amounts described in this clause Fourth payable to them;

 

Fifth, to payment of that portion of the Obligations constituting unpaid principal of the Revolving Credit Loans and L/C Borrowings, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fifth held by them;

 

Sixth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;

 

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Seventh, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Term Loans, ratably among the Term Lenders in proportion to the respective amounts described in this clause Seventh payable to them;

 

Eighth, to payment of that portion of the Obligations constituting unpaid principal of the Term Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Eighth held by them;

 

Ninth, to payment of the Secured Hedge Obligations and the Cash Management Obligations, ratably among the Secured Parties in proportion to the respective amounts described in this clause Ninth held by them;

 

Tenth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

 

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

 

Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Ninth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above and, if no Obligations remain outstanding, delivered to the Borrower.

 

ARTICLE 9

 

ADMINISTRATIVE AGENT AND OTHER AGENTS

 

Section 9.01.                             Appointment and Authority.

 

(a)                                  Each of the Lenders and the L/C Issuer hereby irrevocably appoints Citicorp North America, Inc., to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are expressly delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and none of Holdings or any Restricted Subsidiary shall have rights as a third party beneficiary of any of such provisions.

 

(b)                                 The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article 9 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in this Article 9 and in the definition of “Related Parties” included the L/C Issuer with

 

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respect to such acts or omissions, and (ii) as additionally provided herein with respect to the L/C Issuer.

 

(c)                                  The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), L/C Issuer (if applicable) and, if applicable, Hedge Bank) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent, as “collateral agent” (and any sub-agents and appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article 9 and Section 10.04 and Section 10.05 (including, without limitation, Section 10.05 as though such sub-agents were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

 

Section 9.02.                             Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings and any Restricted Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

 

Section 9.03.                             Exculpatory Provisions.  No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, the Administrative Agent:

 

(a)                                  shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

 

(b)                                 shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents, but shall be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Laws; and

 

(c)                                  shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or any Restricted Subsidiary or any of its Affiliates

 

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that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

 

The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders or (ii) in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.

 

The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

Section 9.04.                             Reliance by Administrative Agent.

 

(a)                                  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

Section 9.05.                             Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

 

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Section 9.06.                             Resignation of Administrative Agent.  (a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon any such resignation, the Required Lenders shall have the right to appoint a succesor Administrative Agent.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after receipt of such notice of resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such resignation notice.  If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten (10) days’ notice remove the Administrative Agent.  Upon receipt of any such notice of removal, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a replacement Administrative Agent.  Such removal will be effective on the earlier of (i) the date a replacement Administrative Agent is appointed and (ii) the date that is ten (10) Business Days after the giving of such notice by the Requisite Lenders (regardless of whether a replacement Administrative Agent has been appointed).  The retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) or removed Administrative Agent, and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this paragraph).  The fees payable by the Loan Parties to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article 9 and Sections 10.04 and 10.05 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

 

(b)                                 Notwithstanding anything to the contrary contained herein, Citicorp North America, Inc. may, upon ten (10) days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or the Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders willing to accept such appointment a successor L/C Issuer or Swing Line Lender hereunder; provided that no failure by the Borrower to appoint any such successor shall affect the resignation of Citicorp North America, Inc. as L/C Issuer or Swing Line Lender, as the case may be.  If Citicorp North America, Inc. resigns as L/C Issuer, it (i) shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed

 

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Amounts pursuant to Section 2.03(c)) and (ii) upon the request of Citicorp North America, Inc., the Loan Parties shall immediately Cash Collateralize all L/C Obligations pursuant to arrangements reasonable satisfactory to Citicorp North America, Inc. on the effective date of such resignation.  If Citicorp North America, Inc. resigns as Swing Line Lender, it (i) shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) and (ii) upon the request of Citicorp North America, Inc., the Borrower shall immediately repay all outstanding Swing Line Loans on the effective date of such resignation.

 

Section 9.07.                             Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

Section 9.08.                             Collateral and Guaranty Matters.  The Lenders irrevocably authorize the Administrative Agent:

 

(a)                                  to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon all of the Obligations (other than (A) (x) Cash Management Obligations and (y)  Obligations under Secured Hedge Agreements not yet due and payable, and (B) contingent obligations not yet accrued and payable) having been paid in full, all Letters of Credit having been Cash Collateralized or otherwise back-stopped (including by “grandfathering” into any future credit facilities), in each case, on terms reasonably satisfactory to the relevant L/C Issuer in its reasonable discretion, or having expired or having been terminated, and the Aggregate Commitments having expired or having been terminated; (ii) that is Disposed of or to be Disposed of as part of or in connection with any Disposition not prohibited hereunder or under any other Loan Document to any Person other than a Loan Party; (iii) subject to Section 10.01, if approved, authorized or ratified in writing by the Required Lenders; (iv) owned by a Guarantor upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (c) below; or (v) as expressly provided in the Collateral Documents;

 

(b)                                 to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(i); and

 

(c)                                  to release any Guarantor from its obligations under the Guaranty if such Person becomes an Excluded Subsidiary or an Unrestricted Subsidiary (or otherwise ceases to be a Restricted Subsidiary under this Agreement) as a result of a transaction or designation permitted under this Agreement; provided that no such release shall occur with respect to an entity that becomes an Excluded Subsidiary or an Unrestricted Subsidiary if such Guarantor continues to be a guarantor in respect of any Unsecured

 

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Financing Obligation unless and until each guarantor is (or is being simultaneously) released from its guarantee with respect to such Unsecured Financing Obligation.

 

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.08.  In each case as specified in this Section 9.08, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.08 and without any representation or warranty whatsoever.

 

Section 9.09.                             No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the Arranger or any other Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.

 

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Section 9.10.                             Appointment of Supplemental Administrative Agents.

 

(a)                                  It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction.  It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Administrative Agent” and collectively as “Supplemental Administrative Agents”).

 

(b)                                 In the event that the Administrative Agent appoints a Supplemental Administrative Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions of this Article 9 and of Sections 10.04 and 10.05 (obligating the Borrower to pay the Administrative Agent’s expenses and to indemnify the Administrative Agent) that refer to the Administrative Agent shall inure to the benefit of such Supplemental Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require.

 

(c)                                  Should any instrument in writing from Holdings or any Restricted Subsidiary be required by any Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrower shall, or shall cause Holdings and such Restricted Subsidiary to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent.  In case any Supplemental Administrative Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.

 

Section 9.11.                             Withholding Tax.  To the extent required by any applicable Law, the Administrative Agent may withhold from any payment to any Lender (including, for purposes of this Section 9.11, any L/C Issuer), an amount equivalent to any applicable withholding tax.  Without limiting or expanding the obligations of Holdings or any Restricted Subsidiary under

 

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Section 3.01, each Lender shall, and does hereby, indemnify the Administrative Agent, within thirty (30) calendar days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective).  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.11.  The agreements in this Section 9.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of any Loans and all other amounts payable hereunder.

 

ARTICLE 10

 

MISCELLANEOUS

 

Section 10.01.                       Amendments, Etc.  (a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Holdings or any Restricted Subsidiary therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and Holdings, the Borrower and any applicable Restricted Subsidiary, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that notwithstanding the foregoing, any amendment or waiver solely affecting the Revolving Credit Lenders (or that does not directly or indirectly affect the rights and obligations of the Term Lenders) under this Agreement and the other Loan Documents may be effected solely with the consent of the Required Revolving Lenders and any amendment or waiver solely affecting the Term Lenders (or that does not directly and adversely affect the rights and obligations of the Revolving Credit Lenders) under this Agreement and the other Loan Documents may be effected solely with the consent of the Required Term Lenders (including, in each case, with respect to Section 8.03); provided, further, no such amendment, waiver or consent shall:

 

(i)                                     extend or increase the Commitment of any Lender without the written consent of each Lender directly affected thereby (it being understood that a waiver of any condition precedent set forth in Section 4.01 or Section 4.02, or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);

 

(ii)                                  postpone any date scheduled for any payment of principal or interest under Section 2.07 or Section 2.08 or fees under Section 2.03(i), 2.03(j), Section 2.09(a) or Section 2.09(b), without the written consent of each Lender directly affected thereby, it being understood that the waiver of any mandatory prepayment of the Term

 

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Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest;

 

(iii)                               reduce or forgive the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of the proviso following this Section 10.01(a)) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of Total Leverage Ratio or in the component definitions thereof shall not constitute a reduction in any rate of interest or fees; provided that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of any Loan Party to pay interest at the Default Rate;

 

(iv)                              change any provision of this Section 10.01 or the definition of “Required Lenders” without the written consent of each Lender or the definitions of “Required Revolving Lenders” without the consent of each Revolving Credit Lender directly affected thereby or the definition of “Required Term Lenders” without the consent of each Term Lender directly affected thereby;

 

(v)                                 release all or substantially all of (A) the Collateral in any transaction or series of related transactions or (B) the Guarantors from their obligations under the Guarantees, in each case, without the written consent of each Lender; or

 

(vi)                              amend Section 2.13, without the written consent of each Lender;

 

and provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document; (iv) Section 10.07(g) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; and (v) no amendment, waiver or consent shall amend, modify supplement or waive any condition precedent to any extension of credit under the Revolving Credit Facility set forth in Section 4.02 without the written consent of the Required Revolving Lenders under the Revolving Facility (it being understood that amendments, modifications, supplements or waivers of any other provision of any Loan Document, including any representation or warranty, any covenant or any Default or Event of Default, shall be deemed to be effective for purposes of determining whether the conditions precedent set forth in Section 4.02 have been satisfied regardless of whether the Required Revolving Lenders shall have consented to such amendment, modification, supplement or waiver).

 

(b)                                 Notwithstanding anything to the contrary herein, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable Laws, such Defaulting Lender shall not have any right to vote hereunder (including any vote to approve or disapprove any amendment, waiver or consent), except that (i) the Commitment of such Defaulting Lender

 

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may not be increased or extended without the consent of such Defaulting Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded from a vote of the Lenders hereunder requiring any consent of the Lenders), (ii) the principal of such Defaulting Lender’s Loans shall not be reduced or forgiven without the consent of such Defaulting Lender, (iii) the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender shall not be reduced without the consent of such Defaulting Lender, (iv) except as set forth in Section 2.16, the amount of any fee payable to such Defaulting Lender shall not be reduced without the consent of such Defaulting Lender and (v) the terms of this Section 10.01(b) shall not be altered without the consent of such Defaulting Lender.

 

(c)                                  Notwithstanding anything to the contrary contained in this Section 10.01, in the event that the Borrower requests that this Agreement be modified or amended in a manner that would require the unanimous consent of all of the Lenders and such modification or amendment is agreed to by the Required Lenders, then with the consent of the Borrower and the Required Lenders, the Borrower and the Required Lenders shall be permitted to amend the Agreement without the consent of the Non-Consenting Lenders to provide for (i) the termination of the Commitment of each Non-Consenting Lender that is (x) a Revolving Credit Lender, (y) a Term Lender or (z) both, at the election of the Borrower and the Required Lenders; (ii) the addition to this Agreement of one or more other financial institutions (each of which must be an Eligible Assignee and together with any consents that would be required pursuant to Section 10.07 for an assignment to such Eligible Assignee), or an increase in the Commitment of one or more of the Lenders (with the written consent thereof), so that the total Commitment after giving effect to such amendment shall be in the same amount as the total Commitment immediately before giving effect to such amendment; (iii) if any Loans are outstanding at the time of such amendment, the making of such additional Loans by such new financial institutions or Required Lender or Lenders, as the case may be, as may be necessary to repay in full, at par, the outstanding Loans of the Non-Consenting Lenders (including, without limitation, any amounts payable pursuant to Section 2.05(a)(iv) and 3.05) immediately before giving effect to such amendment; and (iv) such other modifications to this Agreement as may be appropriate to effect the foregoing clauses (i), (ii) and (iii) of this Section 10.01(c).

 

(d)                                 In addition, notwithstanding anything to the contrary contained in this Section 10.01 or any Loan Document, the Administrative Agent and any Loan Party may amend any Loan Document to correct administrative or manifest errors or omissions, to cure any ambiguities, defects, inconsistencies or mistakes, or to effect administrative changes that are not adverse to any Lender; provided that no such amendment shall become effective until the fifth (5th) Business Day after it has been posted to the Lenders, and then only if the Required Lenders have not objected in writing thereto within such five (5) Business Day period.

 

Section 10.02.                       Notices and Other Communications; Facsimile Copies.

 

(a)                                  General.  Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or any other Loan Document shall be in writing (including by facsimile transmission).  All such written notices shall be mailed, faxed or delivered to the applicable address or facsimile number, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

 

(i)                                     if to Holdings or any other Restricted Subsidiary, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address,

 

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facsimile number or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number or telephone number as shall be designated by such party in a notice to the other parties; and

 

(ii)           if to any other Lender, to the address, facsimile number or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number or telephone number as shall be designated by such party in a notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.

 

All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; and (C) if delivered by facsimile, when sent and receipt has been confirmed; provided that notices and other communications to the Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to Article 2 shall not be effective until actually received by such Person.  In no event shall a voice-mail message be effective as a notice, communication or confirmation hereunder.

 

(b)           Effectiveness of Facsimile Documents and Signatures.  Loan Documents may be transmitted and/or signed by facsimile.  The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on Holdings and all Restricted Subsidiaries, the Agents and the Lenders.  The Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.

 

(c)           Reliance by Agents and Lenders.  The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Agent-Related Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence or willful misconduct by such Agent-Related Person.

 

Section 10.03.       No Waiver; Cumulative Remedies.  No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

 

Section 10.04.       Attorney Costs, Expenses and Taxes.  The Borrower agrees (a) to pay or reimburse the Arranger and the Administrative Agent (including, as applicable, any Supplemental Administrative Agent) for all reasonable out-of-pocket costs and expenses incurred in connection

 

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with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs of Weil, Gotshal & Manges LLP and, if necessary, of one local counsel and one regulatory counsel in each foreign jurisdiction as agreed between the Administrative Agent and the Borrower, and (b) to pay or reimburse the Administrative Agent and each Lender for all reasonable out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs of counsel (which counsel shall be limited as provided in Section 10.05).  The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other reasonable out-of-pocket expenses incurred by any Agent.  All amounts due under this Section 10.04 shall be paid promptly.  The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations.  If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender, in its sole discretion.

 

Section 10.05.       Indemnification by the Borrower.  Whether or not the transactions contemplated hereby are consummated, the Borrower agrees that it shall indemnify and hold harmless each Agent-Related Person, each Arranger, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, attorneys-in-fact, trustees and advisors (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs (which shall be limited to one (1) counsel to the Indemnitees taken as a whole (and, if necessary, one local counsel and one regulatory counsel to the Indemnitees taken as a whole in each appropriate jurisdiction), unless (x) the interests of the Indemnitees are sufficiently divergent, in which case additional counsel may be appointed and (y) if the interests of any Lender or group of Lenders (other than all of the Lenders) are distinctly or disproportionately affected, one additional counsel for such Lender or group of Lenders)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby; (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit); (c) any actual or alleged presence or Release of Hazardous Materials on, at, under or from any property or facility currently or formerly owned or operated by Holdings or any Restricted Subsidiary, or any Environmental Liability related in any way to Holdings or any Restricted Subsidiary; or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is instituted by a third party or by Holdings or any Restricted Subsidiary) (all the foregoing, collectively, the “Indemnified Liabilities”), in all

 

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cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements (x) have been determined in the final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from the gross negligence or willful misconduct of such Indemnitee or a material breach of the Loan Documents by such Indemnitee or (y) arise from claims of any of the Indemnitees solely against one or more Indemnitees (and not by one or more Lenders against the Administrative Agent or one or more of the other Agents) that have not resulted from the action, inaction, participation or contribution of Holdings or any Restricted Subsidiary, their Affiliates or any of their respective officers, directors, stockholders, partners, members, employees, agents, representatives or advisors.  No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date).  In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by Holdings or any Restricted Subsidiary, its directors, shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated.  All amounts due under this Section 10.05 shall be paid promptly.  The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

 

Section 10.06.       Payments Set Aside.  To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.

 

Section 10.07.       Successors and Assigns.

 

(a)           The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (unless in connection with a transaction permitted under Section 7.04) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 10.07(b) or, in the case of any Eligible Assignee that, upon giving effect to such

 

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assignment, would be an Affiliated Lender, Section 10.07(i); (ii) by way of participation in accordance with the provisions of Section 10.07(d); (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(f) or Section 10.07(h), as the case may be; or (iv) to an SPC in accordance with the provisions of Section 10.07(g) (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)           Each Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and the Revolving Credit Loans at the time owing to it and all of its rights and obligations with respect to the Term Loans, Swing Line Loans and Letters of Credit); provided that any such assignment shall be subject to the following conditions:

 

(i)            (A) in the case of an assignment of (x) the entire remaining amount of the assigning Lender’s Revolving Credit Commitment and Term Commitment and the Term Loans, Revolving Credit Loans and Swing Line Loans at the time owing to it or (y) in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned and (B) in any case not described in clause (b)(i)(A) above, the aggregate amount of the Term Loans, the Term Commitment or the Revolving Credit Commitment (which for this purpose includes the Outstanding Amount of Revolving Credit Loans thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Term Loans or the Outstanding Amount of Revolving Credit Loans of the assigning Lender subject to each such assignment (determined as of the effective date of the Assignment and Assumption with respect to such assignment) shall not be less than $2,500,000, unless the Administrative Agent otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that concurrent assignments to or by Approved Funds will be treated as a single assignment for the purpose of meeting the minimum transfer requirements.

 

(ii)           (A) if any such assignment shall be of the assigning Lender’s Outstanding Amount of Revolving Credit Loans and Revolving Credit Commitment, such assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Outstanding Amount of Revolving Credit Loans and the Revolving Credit Commitment assigned and (B) if any such assignment shall be of the assigning Lender’s Term Loans and Term Commitment, such assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement with respect to the Term Loans and Term Commitment assigned.  Any such assignment need not be ratable as among the Term Loan Facility and the Revolving Credit Facility.

 

(iii)          No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) above and, in addition:

 

(A)          the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required with respect to assignments of Revolving Credit Loans and Revolving Credit

 

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Commitments unless (x) an Event of Default in respect of Section 8.01(a), Section 8.01(f) or Section 8.01(g) shall have occurred and be continuing at the time of such assignment or would result therefrom, (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund or (z) such assignment is by an Affiliate of the Administrative Agent made within sixty (60) Business Days after the Closing Date of its Commitments held on the Closing Date; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;

 

(B)           the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund;

 

(C)           the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding)

 

(D)          The consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Swing Loans.

 

(iv)          the parties to each assignment (which shall not include the Borrower unless its consent to such assignment is required hereunder) shall (A) execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (which initially shall be ClearPar, LLC) or (B) manually execute and deliver to the Administrative Agent an Assignment and Assumption together with a processing and recordation fee of $3,500 (which fee may be waived by the Administrative Agent in its discretion); provided that only a single processing and recordation fee shall be payable in respect of multiple contemporaneous assignments to Approved Funds with respect to any Lender; and

 

(v)           the assigning Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent.

 

(vi)          Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(c), from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 3.01, Section 3.04, Section 3.05, Section 10.04 and Section 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment).  Upon request, and the surrender by the

 

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assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(d).

 

(c)           The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts due under Section 2.03, owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by any Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.  Notwithstanding anything to the contrary contained in this Agreement, the Credit Extensions are intended to be treated as registered obligations for federal income tax purposes.  Any right or title in or to any Credit Extensions (including with respect to the principal amount and any stated interest thereon) may only be assigned or otherwise transferred through the Register. This Section shall be construed so that the Credit Extensions are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code, Treasury Regulation Section 5f.103-1(c) and any other related regulations (or any successor provisions of the Code or such regulations).  The Register shall be conclusive evidence absent manifest error of the principal and any stated interest amount owed under the Credit Extensions.

 

(d)           Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that directly affects such Participant.  Subject to Section 10.07(e), the Borrower agrees that each Participant shall be entitled to the benefits of Section 3.01, Section 3.04 and Section 3.05 (subject to the requirements and limitations therein and in Sections 3.06 and 10.15) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b) and such Participant agrees to be bound by such Sections and Section 3.06.  To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a

 

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Lender.  Each Lender that sells a participation shall, acting solely for this purpose as an non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”).  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

 

(e)           A Participant shall not be entitled to receive any greater payment under Section 3.01, Section 3.04 or Section 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed).

 

(f)            Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(g)           Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that an SPC shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein and in Sections 3.06 and 10.15) , but (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including their obligations under Section 3.01, Section 3.04 or Section 3.05), unless the grant to an SPC is made with the prior written consent of the Borrower (which shall not be unreasonably withheld or delayed), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder.  The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.

 

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(h)           Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may, without the consent of or notice to the Administrative Agent or the Borrower, create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and, (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise (unless such trustee is an Eligible Assignee which has complied with the requirements of Section 10.07(b)).

 

(i)            (i)            Subject to the terms of Section 10.07(b)(i), (b)(ii), (b)(v) and (b)(vi), any Lender may assign all or a portion of its Term Loans to any Person who, after giving effect to such assignment, would be an Affiliated Lender (without the consent of any Person but subject to acknowledgment by the Administrative Agent); provided that:

 

(A)          Except as previously disclosed in writing to the Administrative Agent and the Term Lenders, each Affiliated Lender shall represent and warrant that, as of the date of any assignment to or from such Affiliated Lender pursuant to this Section 10.07(i), neither the Affiliated Lender nor the Sponsor to which such Affiliated Lender is an Affiliate has any material non-public information (“MNPI”) with respect to Holdings, any of its Subsidiaries or their respective securities that has not been disclosed to the assigning Lender, potential assignee, the Administrative Agent and the Lenders (other than because such Person does not wish to receive MNPI with respect to Holdings, any of its Subsidiaries or their respective securities) prior to such date to the extent such information could reasonably be expected to have a material effect upon, or otherwise be material, to such Person’s decision to assign its Term Loans to or receive an assignment of Term Loans from such Affiliated Lender (as applicable);

 

(B)           the assigning Lender and the Affiliated Lender purchasing such Lender’s Term Loans shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit J hereto (an “Affiliated Lender Assignment and Assumption”) together with a processing and recordation fee of $3,500;

 

(C)           for the avoidance of doubt, Lenders shall not be permitted to assign Revolving Credit Commitments or Revolving Credit Loans to an Affiliated Lender and any purported assignment of Revolving Credit Commitments or Revolving Credit Loans to an Affiliated Lender shall be null and void; and

 

(D)          at the time of such assignment after giving affect to such assignment, the aggregate principal amount of all Loans held by Affiliated Lenders shall not exceed 20% of the aggregate principal amount of all Loans and Commitments outstanding under this Agreement.

 

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(ii)           Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender shall have any right to (A) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of Holdings and its Subsidiaries are not invited or (B) receive any information or material prepared by Administrative Agent or any Lender or any communication by or among Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to Holdings, its Subsidiaries or their representatives.

 

(iii)          Notwithstanding anything to the contrary in this Agreement (including in Section 10.01 or the definition of “Required Lenders”), for purposes of determining whether the Required Lenders, all affected Lenders or all Lenders have (A) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to any Loan Document or (C) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, an Affiliated Lender shall be deemed to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders; provided that no amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive such Affiliated Lender of its Pro Rata Share of any payments to which such Affiliated Lender is entitled under the Loan Documents without such Affiliated Lender providing its consent; provided, further, that such Affiliated Lender shall have the right to approve any amendment, modification, waiver or consent of the type described in Section 10.01 (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this Agreement to the extent that such Affiliated Lender is affected thereby; and, in furtherance of the foregoing, (x) the Affiliated Lender agrees to execute and deliver to the Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as a Lender in accordance with the provisions of this Section 10.07(i); provided that if the Affiliated Lender fails to promptly execute such instrument such failure shall in no way prejudice any of the Administrative Agent’s rights under this paragraph and (y) the Administrative Agent is hereby appointed (such appointment being coupled with an interest) by the Affiliated Lender as the Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of the Affiliated Lender and in the name of the Affiliated Lender, from time to time in the Administrative Agent’s discretion, to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this Section 10.07(i)(iii).

 

(iv)          Each Affiliated Lender, solely in its capacity as a Term Lender, hereby agrees, and each Affiliated Lender Assignment Agreement shall provide a confirmation that, if Holdings or any Restricted Subsidiary shall be subject to any voluntary or involuntary proceeding commenced under any Debtor Relief Laws (“Bankruptcy Proceedings”), (i) such Affiliated Lender shall not take any step or action in such Bankruptcy Proceeding to object to, impede or delay the exercise of any right or the taking of any action by the Administrative Agent (or the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Lender’s claim with respect to its Loans (a “Claim”) (including, without limitation, objecting to any debtor in possession financing, use of cash collateral, grant of adequate

 

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protection, sale or disposition, compromise or plan of reorganization) so long as such Affiliated Lender is treated in connection with such exercise or action on the same or better terms as the other Term Lenders and (ii) with respect to any matter requiring the vote of Term Lenders during the pendency of a Bankruptcy Proceeding (including, without limitation, voting on any plan of reorganization), the Loans held by such Affiliated Lender (and any Claim with respect thereto) shall be deemed to be voted in accordance with clause (iii) of this Section 10.07(i), so long as such Affiliate Lender is treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Term Lenders.  For the avoidance of doubt, the Lenders and each Affiliated Lender agree and acknowledge that the provisions set forth in this clause (iv) of Section 10.07(i), and the related provisions set forth in each Affiliated Lender Assignment and Assumption, constitute a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the United States Bankruptcy Code, and, as such, would be enforceable for all purposes in any case where Holdings or any Restricted Subsidiary has filed for protection under any Debtor Relief Law applicable to Holdings or any such Restricted Subsidiary.

 

Section 10.08.       Confidentiality.  Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to it and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any regulatory authority; (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (provided that the Agent or Lender that discloses any Information pursuant to this clause (c) shall provide the Borrower prompt notice of such disclosure to the extent permitted by applicable Law); (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower), to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee or pledgee of or Participant in, any of its rights or obligations under this Agreement; (f) with the written consent of the Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08; (h) to any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, promptly notify the Borrower, in advance, to the extent lawfully permitted to do so); (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to Holdings and its Restricted Subsidiaries received by it from such Lender); (j) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder to the extent reasonably necessary in connection with such enforcement or (k) to any direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s professional advisors (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section 10.08 or as may otherwise be reasonably acceptable to the Borrower).  In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in

 

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connection with the administration and management of this Agreement, the other Loan Documents (other than any Fee Letter), the Commitments, and the Credit Extensions.  For the purposes of this Section 10.08, “Information” means all information received from Holdings or any of its Subsidiaries relating to Holdings or any of its Restricted Subsidiaries or its or their business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by Holdings or any of its Subsidiaries other than as a result of a breach of this Section 10.08; provided that, in the case of information received from Holdings or any of its Subsidiaries after the date hereof, such information is clearly identified at the time of delivery as confidential.

 

Section 10.09.                       Setoff.  In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Default or Event of Default, after obtaining the prior written consent of the Administrative Agent, each Lender and its Affiliates are authorized at any time and from time to time, without prior notice to Holdings or any Subsidiary, any such notice being waived by Holdings (on its own behalf and on behalf of each Subsidiary) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender or such Affiliate of a Lender to or for the credit or the account of Holdings and the respective Subsidiaries against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness.  Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender or its Affiliates; provided that the failure to give such notice shall not affect the validity of such setoff and application.  The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent and such Lender may have.

 

Section 10.10.                       Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Agent or Lender may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

Section 10.11.                       Counterparts.  This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery by telecopier of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document.  The Agents may also require that any such documents and signatures delivered by

 

145


 

telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.

 

Section 10.12.                       Integration.  This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter.  In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement.  Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.

 

Section 10.13.                       Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default or Event of Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding (except, with respect to Letters of Credit, to the extent such Letters of Credit are Cash Collateralized as set forth in Section 2.03(g)).

 

Section 10.14.                       Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

Section 10.15.                       Tax Forms.  To the extent it is qualified for any exemption from or reduction in United States federal withholding tax with respect to any Loan made to the Borrower, each Lender and Agent that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code that lends to the Borrower (each, a “Non-US Lender”) shall deliver to the Borrower and the Administrative Agent, on or prior to the date which is ten (10) Business Days after the Closing Date (or upon accepting an assignment of an interest herein), two duly signed, properly completed copies of either IRS Form W-8BEN, W-8EXP or any successor thereto (relating to such Non-US Lender and entitling it to an exemption from, or reduction of, United States federal withholding tax on specified payments to be made to such Non-US Lender by the Borrower pursuant to this Agreement or any other Loan Document) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such Non-US Lender by the Borrower pursuant to this Agreement or any other Loan Document) or such other evidence reasonably satisfactory to the Borrower and the Administrative Agent that such Non-US Lender is entitled to an exemption from, or reduction of, United States federal withholding tax, including any exemption pursuant to Section 881(c) of the Code, and in the case of a Non-US Lender claiming such an exemption under Section 881(c) of the Code, a certificate substantially in the form of Exhibits I-1, I-2, I-3 and I-4 (the “US Tax Certificate”) that establishes in writing to the Borrower and the Administrative Agent that such Non-US Lender is not (i) a “bank” within the

 

146


 

meaning of Section 881(c)(3)(A) of the Code, (ii) a 10-percent shareholder within the meaning of Section 871(h)(3)(B) or 881(c)(3)(B) of the Code, (iii) a controlled foreign corporation described in Section 881(c)(3)(C) of the Code and (iv) receiving any payment under any Loan Document that is effectively connected with a U.S. trade or business.  Thereafter and from time to time, to the extent it is then qualified for any exemption from or reduction in United States federal withholding tax, each such Non-US Lender shall (A) promptly submit to the Borrower and the Administrative Agent such additional duly and properly completed and signed copies of one or more of such forms or certificates (or such successor forms or certificates as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States laws and regulations to avoid, or such evidence as is reasonably satisfactory to the Borrower and the Administrative Agent of any available exemption from, or reduction of, United States federal withholding taxes in respect of payments to be made to such Non-US Lender by the Borrower pursuant to this Agreement, or any other Loan Document, in each case, (1) on or before the date that any such form, certificate or other evidence expires or becomes obsolete, (2) after the occurrence of any event requiring a change in the most recent form, certificate or evidence previously delivered by it to the Borrower and the Administrative Agent and (3) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, and (B) promptly notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any previously claimed exemption or reduction.

 

(i)                                     Each Non-US Lender, to the extent it does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Non-US Lender under any of the Loan Documents (for example, in the case of a typical participation by such Non-US Lender, or where Non-U.S. Lender is a partnership for U.S. federal income tax purposes), shall deliver to the Borrower and the Administrative Agent on the date when such Non-US Lender ceases to act for its own account with respect to any portion of any such sums paid or payable, and at such other times as may be necessary in the determination of the Borrower or the Administrative Agent (in either case, in the reasonable exercise of its discretion), (A) two duly signed, properly completed copies of the forms or statements required to be provided by such Non-US Lender as set forth above, to establish the portion of any such sums paid or payable with respect to which such Non-US Lender acts for its own account that is not subject to United States federal withholding tax, and (B) two duly signed, properly completed copies of IRS Form W-8IMY (or any successor thereto), together with any information such Non-US Lender is required to transmit with such form, and any other certificate or statement of exemption required under the Code, to establish that such Non-US Lender is not acting for its own account with respect to a portion of any such sums payable to such Non-US Lender, including any applicable U.S. Tax Certificate, provided that if the Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a US Tax Certificate on behalf of such partners;

 

(ii)                                  The Administrative Agent may deduct and withhold any taxes required by any Laws to be deducted and withheld from any payment under any of the Loan Documents.

 

(b)                                 Each Lender and Agent that is a “United States person” within the meaning of Section 7701(a)(30) of the Code that lends to the Borrower (each, a “US Lender”)

 

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shall deliver to the Administrative Agent and the Borrower two duly signed, properly completed copies of IRS Form W-9 on or prior to the Closing Date (or on or prior to the date it becomes a party to this Agreement), certifying that such US Lender is entitled to an exemption from United States backup withholding tax, or any successor form.  Notwithstanding anything to the contrary in this Agreement, if such US Lender fails to deliver such forms, then the Administrative Agent may withhold from any payment to such US Lender an amount equivalent to the applicable backup withholding tax imposed by the Code and the Borrower shall not be liable for any additional amounts with respect to such withholding.

 

Section 10.16.        GOVERNING LAW.

 

(a)                                  THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT (OTHER THAN ANY LOAN DOCUMENT EXPRESSLY GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT AS SET FORTH IN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

(b)                                 ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, HOLDINGS, THE BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  HOLDINGS, THE BORROWER, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.

 

Section 10.17.                       WAIVER OF RIGHT TO TRIAL BY JURY.  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

Section 10.18.                       Binding Effect.  This Agreement shall become effective when it shall have been executed by Holdings and the Borrower and the Administrative Agent shall have been notified by each Lender, Swing Line Lender and the L/C Issuer that each such Lender, Swing

 

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Line Lender and the L/C Issuer has executed it and thereafter shall be binding upon and inure to the benefit of Holdings, the Borrower, each Agent and each Lender and their respective successors and assigns, except that neither Holdings nor the Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04.

 

Section 10.19.                       USA PATRIOT Act Notice.  Each Lender that is subject to the PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name and address of the Borrower and such Guarantors and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and such Guarantors in accordance with the Act.

 

Section 10.20.                       No Advisory or Fiduciary Relationship.  In connection with all aspects of each transaction contemplated hereby, each of Holdings and the Borrower (on behalf of itself and each of the other Subsidiaries) acknowledges and agrees that (i) the Facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between Holdings and the Borrower, on the one hand, and the Agents and the Lenders, on the other hand, and both Holdings and the Borrower are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, each of the Agents and the Lenders is, and has been acting solely as a principal and is not the agent or fiduciary for, Holdings or the Borrower; and (iii) the Agents and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and Holdings and the Borrower have both consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

 

CCA CLUB OPERATIONS HOLDINGS, LLC,

 

as Holdings

 

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

 

 

CLUBCORP CLUB OPERATIONS, INC., as

 

Borrower

 

 

 

 

 

By:

/s/ Ingrid J. Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

[CLUBCORP CLUB OPERATIONS, INC. CREDIT AGREEMENT]

 


 

 

CITICORP NORTH AMERICA, INC., individually as Administrative Agent, L/C Issuer and Swing Line Lender

 

 

 

 

 

By:

/s/ Ana E. Rosu

 

 

Name: Ana E. Rosu

 

 

Title: Authorized Signatory

 

[CLUBCORP CLUB OPERATIONS, INC. CREDIT AGREEMENT]

 


 

 

CITICORP NORTH AMERICA, INC., as Lender

 

 

 

 

 

By:

/s/ Ana E. Rosu

 

 

Name: Ana E. Rosu

 

 

Title: Authorized Signatory

 

[CLUBCORP CLUB OPERATIONS, INC. CREDIT AGREEMENT]

 


 

 

Acknowledged and Agreed, solely for purposes of Section 2.03(l):

 

 

 

CITIBANK, N.A., as L/C Issuer

 

 

 

 

 

By:

/s/ Arnold Y. Wong

 

 

Name: Arnold Y. Wong

 

 

Title: Vice President

 

[CLUBCORP CLUB OPERATIONS, INC. CREDIT AGREEMENT]

 

 

Schedule I

 

Affiliated Lender Assignment and Assumption with respect to the Credit Agreement, dated as of November [    ], 2010, among CCA Club Operations Holdings, Inc., a Delaware corporation, ClubCorp Club Operations, Inc., a Delaware corporation, each lender from time to time party thereto and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

Name of Assignor:

 

Name of Assignee:

 

Effective Date of Assignment:

 

Credit Facility Assigned

 

Principal
Amount Assigned

 

Commitment Percentage
Assigned

 

 

 

 

 

 

 

Term Loan Facility

 

$

 

 

.                 

%

 

[Name of Assignee]

 

[Name of Assignor]

By:

 

 

By:

 

 

Title:

 

 

Title:

 

 

Schedule I
Accounting Periods

 

2010

 

Period

 

Begin

 

End

 

1

 

12/30/2009

 

1/26/2010

 

2

 

1/27/2010

 

2/23/2010

 

3

 

2/24/2010

 

3/23/2010

 

4

 

3/24/2010

 

4/20/2010

 

5

 

4/21/2010

 

5/18/2010

 

6

 

5/19/2010

 

6/15/2010

 

7

 

6/16/2010

 

7/13/2010

 

8

 

7/14/2010

 

8/10/2010

 

9

 

8/11/2010

 

9/7/2010

 

10

 

9/8/2010

 

10/5/2010

 

11

 

10/6/2010

 

11/2/2010

 

12

 

11/3/2010

 

11/30/2010

 

13

 

12/1/2010

 

12/28/2010

 

 

2011

 

Period

 

Begin

 

End

 

1

 

12/29/2010

 

1/25/2011

 

2

 

1/26/2011

 

2/22/2011

 

3

 

2/23/2011

 

3/22/2011

 

4

 

3/23/2011

 

4/19/2011

 

5

 

4/20/2011

 

5/17/2011

 

6

 

5/18/2011

 

6/14/2011

 

7

 

6/15/2011

 

7/12/2011

 

8

 

7/13/2011

 

8/9/2011

 

9

 

8/10/2011

 

9/6/2011

 

10

 

9/7/2011

 

10/4/2011

 

11

 

10/5/2011

 

11/1/2011

 

12

 

11/2/2011

 

11/29/2011

 

13

 

11/30/2011

 

12/27/2011

 

 

2012

 

Period

 

Begin

 

End

 

1

 

12/28/2011

 

1/24/2012

 

2

 

1/25/2012

 

2/21/2012

 

3

 

2/22/2012

 

3/20/2012

 

4

 

3/21/2012

 

4/17/2012

 

5

 

4/18/2012

 

5/15/2012

 

6

 

5/16/2012

 

6/12/2012

 

7

 

6/13/2012

 

7/10/2012

 

8

 

7/11/2012

 

8/7/2012

 

9

 

8/8/2012

 

9/4/2012

 

10

 

9/5/2012

 

10/2/2012

 

11

 

10/3/2012

 

10/30/2012

 

12

 

10/31/2012

 

11/27/2012

 

13

 

11/28/2012

 

12/25/2012

 

 


 

2013

 

Period

 

Begin

 

End

 

1

 

12/26/2012

 

1/22/2013

 

2

 

1/23/2013

 

2/19/2013

 

3

 

2/20/2013

 

3/19/2013

 

4

 

3/20/2013

 

4/16/2013

 

5

 

4/17/2013

 

5/14/2013

 

6

 

5/15/2013

 

6/11/2013

 

7

 

6/12/2013

 

7/9/2013

 

8

 

7/10/2013

 

8/6/2013

 

9

 

8/7/2013

 

9/3/2013

 

10

 

9/4/2013

 

10/1/2013

 

11

 

10/2/2013

 

10/29/2013

 

12

 

10/30/2013

 

11/26/2013

 

13

 

11/27/2013

 

12/24/2013

 

14

 

12/25/2013

 

12/31/2013

 

 

2014

 

Period

 

Begin

 

End

 

1

 

1/1/2014

 

1/28/2014

 

2

 

1/29/2014

 

2/25/2014

 

3

 

2/26/2014

 

3/25/2014

 

4

 

3/26/2014

 

4/22/2014

 

5

 

4/23/2014

 

5/20/2014

 

6

 

5/21/2014

 

6/17/2014

 

7

 

6/18/2014

 

7/15/2014

 

8

 

7/16/2014

 

8/12/2014

 

9

 

8/13/2014

 

9/9/2014

 

10

 

9/10/2014

 

10/7/2014

 

11

 

10/8/2014

 

11/4/2014

 

12

 

11/5/2014

 

12/2/2014

 

13

 

12/3/2014

 

12/30/2014

 

 

2015

 

Period

 

Begin

 

End

 

1

 

12/31/2014

 

1/27/2015

 

2

 

1/28/2015

 

2/24/2015

 

3

 

2/25/2015

 

3/24/2015

 

4

 

3/25/2015

 

4/21/2015

 

5

 

4/22/2015

 

5/19/2015

 

6

 

5/20/2015

 

6/16/2015

 

7

 

6/17/2015

 

7/14/2015

 

8

 

7/15/2015

 

8/11/2015

 

9

 

8/12/2015

 

9/8/2015

 

10

 

9/9/2015

 

10/6/2015

 

11

 

10/7/2015

 

11/3/2015

 

12

 

11/4/2015

 

12/1/2015

 

13

 

12/2/2015

 

12/29/2015

 

 


 

2016

 

Period

 

Begin

 

End

 

1

 

12/30/2015

 

1/26/2016

 

2

 

1/27/2016

 

2/23/2016

 

3

 

2/24/2016

 

3/22/2016

 

4

 

3/23/2016

 

4/19/2016

 

5

 

4/20/2016

 

5/17/2016

 

6

 

5/18/2016

 

6/14/2016

 

7

 

6/15/2016

 

7/12/2016

 

8

 

7/13/2016

 

8/9/2016

 

9

 

8/10/2016

 

9/6/2016

 

10

 

9/7/2016

 

10/4/2016

 

11

 

10/5/2016

 

11/1/2016

 

12

 

11/2/2016

 

11/29/2016

 

13

 

11/30/2016

 

12/27/2016

 

 


 

Schedule II

Administrative Agent’s Office

 

ADMINISTRATIVE AGENT

 

DOMESTIC LENDING OFFICE

 

WIRING INSTRUCTIONS

Citicorp North America, Inc.

 

Citicorp North America, Inc.

1615 Brett Road, Building III

New Castle, DE 19720

Attention: Vince Napoli

Facsimile: 212-994-0847

 

Bank Name: CITIBANK, N.A.

ABA/Routing No: #########

Account Name: PPM Houston

Account No.: #########

Reference:  ClubCorp Club Operations, Inc.

 

 

With a copy to:

 

Soo-Jin Shim

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10153

Facsimile:  212-310-8007

 

 

 


 

Schedule III
Excluded Subsidiaries

 

ENTITY

 

JURISDICTION OF ORGANIZATION

Bear’s Best Atlanta, L.P.*

 

a Georgia limited partnership

Bear’s Best Las Vegas, Limited Partnership*

 

a Nevada corporation

ClubCorp LSprings, L.P.*

 

a Georgia limited partnership

Nicklaus Golf Club, L.P. at LionsGate*

 

a Kansas limited partnership

Granite Bay Limited Partnership*

 

a California limited partnership

Granite Bay Golf Club, Inc.*

 

a Delaware corporation

CCS, LLC

 

a Delaware limited liability company

Monarch Country Club, Inc.

 

a Florida corporation

Stonebriar Club, Inc.

 

a Texas corporation

Stonebriar Country Club Joint Venture

 

a Texas general partnership

Stonebriar Management Holdings, LLC

 

a Delaware limited liability company

CCG Club de Golf, S.A. de C.V.

 

a foreign corporation (Mexico)

CG Desarrolladora, S.A. de C.V.

 

a foreign corporation (Mexico)

CG Inversiones S.A. de C.V.

 

a foreign corporation (Mexico)

ClubCorp Latin America, S.A. de C.V.

 

a foreign corporation (Mexico)

Promociones Turisticas Professionales, S.A. de C.V.

 

a foreign corporation (Mexico)

Club de Golf Financiero, S.A. de C.V.

 

a foreign corporation (Mexico)

Isla Maya Club de Golf S.A. de C.V.

 

a foreign corporation (Mexico)

La Vista Club de Golf S.A. de C.V.

 

a foreign corporation (Mexico)

 

* Specified Excluded Subsidiaries

 


 

Schedule IV
Ground Leases

 

Club Name

 

Entity

 

Address

 

City

 

State

 

Zip

Airways Municipal Golf Course

 

ClubCorp Airways Golf, Inc.

 

5440 E. Shields

 

Fresno

 

CA

 

93727-7793

Bluegrass Yacht & Country Club

 

Bluegrass Club, LLC

 

550 Johnny Cash Parkway

 

Hendersonville

 

TN

 

37075

Empire Ranch Golf Club

 

Empire Ranch, LLC

 

1620 East Natoma

 

Folsom

 

CA

 

95630

Indian Wells Country Club

 

ClubCorp IW Golf Club, Inc.

 

46-000 Club Drive

 

Indian Wells

 

CA

 

92210

Ipswich Country Club

 

New England Country Club Management, Inc.

 

148 Country Club Way

 

Ipswich

 

MA

 

01938

Mission Hills Country Club

 

ClubCorp Mission Hills Country Club, Inc.

 

34-600 Mission Hills Drive

 

Rancho Mirage

 

CA

 

92270

River Creek Country Club

 

River Creek Country Club, Inc.

 

43800 Olympic Blvd.

 

Leesburg

 

VA

 

20176

Silver Lake Country Club

 

Silver Lake Management Corp.

 

1325 Graham Road

 

Silver Lake

 

OH

 

44224-2999

Stonehenge Golf & Country Club

 

Stonehenge Club, Inc.

 

1000 Farnham Drive

 

Richmond

 

VA

 

23236

Teal Bend Golf Club

 

ClubCorp Teal Bend Golf Club, Inc.

 

7200 Garden Hwy

 

Sacramento

 

CA

 

95837

The Currituck Club

 

Currituck Golf, LLC

 

620 Currituck Clubhouse Drive

 

Corolla

 

NC

 

27927

Turkey Creek Golf Club

 

ClubCorp Turkey Creek Golf Club, Inc.

 

1525 Hwy 193

 

Lincoln

 

CA

 

95648

Willow Creek Golf Club

 

Willow Creek Management, Inc.

 

24525 Northcrest

 

Spring

 

TX

 

77389

 


 

Schedule V
Guarantors

 

ENTITY

 

JURISDICTION OF ORGANIZATION

191 Athletic Club Management Company, LLC

 

a Delaware limited liability company

191 CC Operating Co., LLC

 

a Delaware limited liability company

Akron Management Corp.

 

an Ohio corporation

Aliso Viejo Golf Club Joint Venture

 

a California partnership

Anthem Golf, LLC

 

an Arizona limited liability company

April Sound Management Corp.

 

a Texas corporation

Aspen Glen Golf Club Management Company

 

a Colorado corporation

Athletic Club at the Equitable Center, Inc.

 

a New York corporation

AZ Club, LLC

 

a Delaware limited liability company

Barton Creek Resort & Clubs, Inc.

 

a Texas corporation

Bay Oaks Country Club, Inc.

 

a Texas corporation

Bluegrass Club, LLC

 

a Tennessee limited liability company

Brookhaven Country Club, Inc.

 

a Texas corporation

Canyon Gate at Las Vegas, Inc.

 

a Nevada corporation

Capital City Club of Montgomery, Inc.

 

an Alabama corporation

Capital City Club of Raleigh, Inc.

 

a North Carolina corporation

CCA Golf Course Holdco, LLC

 

a Delaware limited liability company

CCA Mezzanine Holdco, LLC

 

a Delaware limited liability company

Centre Club, Inc.

 

a Florida corporation

Citrus Club, Inc.

 

a Florida corporation

City Club of Washington, Inc.

 

a Washington, D.C. corporation

Club at Boston College, Inc.

 

a Massachusetts corporation

Club Le Conte, Inc.

 

a Tennessee corporation

ClubCorp — Asia

 

a Nevada corporation

ClubCorp Airways Golf, Inc.

 

a Delaware corporation

ClubCorp Aliso Viejo Holding Corp.

 

a Delaware corporation

ClubCorp Asia Investments Inc.

 

a Nevada corporation

ClubCorp Aven Holdings, Inc.

 

a Delaware corporation

ClubCorp Braemar Country Club, Inc.

 

a Delaware corporation

ClubCorp Bunker Hill Club, Inc.

 

a Delaware corporation

ClubCorp Buying Services, Inc.

 

a Delaware corporation

ClubCorp Canyon Crest Country Club, Inc.

 

a Delaware corporation

ClubCorp Center Club, Inc.

 

a Delaware corporation

ClubCorp Club Operations, Inc.

 

a Delaware corporation

ClubCorp Coto Property Holdings, Inc.

 

a Delaware corporation

ClubCorp Crow Canyon Management Corp.

 

a Delaware corporation

ClubCorp Desert Falls Country Club, Inc.

 

a Delaware corporation

ClubCorp Financial Management Company

 

a Nevada corporation

ClubCorp GCL Corporation

 

a Delaware corporation

ClubCorp Gen Par of Texas, L.L.C.

 

a Delaware limited liability company

ClubCorp Golf of California, L.L.C.

 

a Delaware limited liabilty company

ClubCorp Golf of Florida, L.L.C.

 

a Delaware limited liability company

 


 

ENTITY

 

JURISDICTION OF ORGANIZATION

ClubCorp Golf of Georgia, L.P.

 

a Georgia limited partnership

ClubCorp Golf of North Carolina, L.L.C.

 

a Delaware limited liability company

ClubCorp Golf of Texas, L.P.

 

a Texas limited partnership

ClubCorp Granite Bay Management, Inc.

 

a Delaware corporation

ClubCorp Graphics, Inc.

 

a Florida Corporation

ClubCorp Hamlet, LLC

 

a Delaware limited liability company

ClubCorp International, Inc.

 

a Nevada corporation

ClubCorp IW Golf Club, Inc.

 

a Delaware corporation

ClubCorp Management Company for Stone Creek, LLC

 

a Delaware limited liability company

ClubCorp Mexico, Inc.

 

a Nevada corporation

ClubCorp Mezzanine Borrower, LLC

 

a Delaware limited liabilty company

ClubCorp Mission Hills Country Club, Inc.

 

a Delaware corporation

ClubCorp Mortgage Borrower, LLC

 

a Delaware limited liability company

ClubCorp Porter Valley Country Club, Inc.

 

a Delaware corporation

ClubCorp Publications, Inc.

 

a Nevada corporation

ClubCorp San Jose Club, Inc.

 

a Delaware corporation

ClubCorp Shadow Ridge Golf Club, Inc.

 

a Delaware corporation

ClubCorp Spring Valley Lake Country Club, Inc.

 

a Delaware corporation

ClubCorp Symphony Towers Club, Inc.

 

a Delaware corporation

ClubCorp Teal Bend Golf Club, Inc.

 

a Delaware corporation

ClubCorp TTC, LLC

 

a Delaware limited liability company

ClubCorp Turkey Creek Golf Club, Inc.

 

a Delaware corporation

ClubCorp USA, Inc.

 

a Delaware corporation

ClubCorp Willow Creek, LLC

 

a Delaware limited liability company

ClubCorp Wind Watch, LLC

 

a Delaware limited liability company

Columbia Capital City Club Corp.

 

a South Carolina corporation

Columbia Tower Club, Inc.

 

a Washington corporation

Countryside Country Club, Inc.

 

a Florida corporation

Currituck Golf, LLC

 

a Delaware limited liability company

Dallas Tower Club, Inc.

 

a Texas corporation

Dayton Racquet Club, Inc.

 

an Ohio corporation

DeBary Management Corp.

 

a Florida corporation

Diamante’ Golf Club Management, Inc.

 

an Arkansas corporation

Diamante’ Golf Club Partners, Inc.

 

an Arkansas corporation

Diamond Run Club, Inc.

 

a Pennsylvania corporation

Empire Ranch, LLC

 

a Delaware limited liability company

Fair Oaks Club Corp.

 

a Texas corporation

Farms of New Kent Management, LLC

 

a Delaware limited liability company

FFFC Golf Acquisitions, L.L.C.

 

a Delaware limited liabilty company

First City Club Management, Inc.

 

a Georgia corporation

Fort Bend Acquisition Corp.

 

a Texas corporation

GCC Asset Management, Inc.

 

a Texas corporation

Glendale Management Corp.

 

a Wisconsin corporation

Glendale Racquet Club, Inc.

 

a Wisconsin corporation

GP Bear’s Best Atlanta, Inc.

 

a Georgia corporation

 


 

ENTITY

 

JURISDICTION OF ORGANIZATION

GP Bear’s Best Las Vegas, Inc.

 

a Nevada corporation

GRanch Golf Club, Inc.

 

an Arizona corporation

Greenbrier Country Club, Inc.

 

a Virginia corporation

Greenspoint Club, Inc.

 

a Texas corporation

Hackberry Creek Country Club, Inc.

 

a Texas corporation

Haile Plantation Management Corp.

 

a Florida corporation

Harbour Club of Charleston, Inc.

 

a South Carolina corporation

Hearthstone Country Club, Inc.

 

a Texas corporation

Hill Country Golf, Inc.

 

a Texas corporation

Hills II of Lakeway, Inc.

 

a Texas corporation

Houston City Club, Inc.

 

a Texas corporation

HPG, L.C.

 

a Florida limited liability company

Hunter’s Green Acquisition Corp.

 

a Florida corporation

Indigo Run Asset Corp.

 

a South Carolina corporation

Irving Club Acquisition Corp.

 

a Texas corporation

Kingwood Country Club, Inc.

 

a Texas corporation

Knollwood Country Club, Inc.

 

an Indiana corporation

La Cima Club, Inc.

 

a Texas corporation

Lakeway Clubs, Inc.

 

a Texas corporation

Laurel Springs Holdco, LLC

 

a Delaware limited liability company

LionsGate Golf Club, Inc.

 

a Kansas corporation

MAC Club, LLC

 

a Delaware limited liability company

Management Company for Eagle Ridge and The Preserve

 

a Florida corporation

Manager for CCHH, Inc.

 

a South Carolina corporation

Master Club, Inc.

 

a Nevada corporation

Memorial Stadium Club Management Corp.

 

a Texas corporation

Memphis City Club, Inc.

 

a Tennessee corporation

MH Villas, Inc.

 

a California corporation

Monarch EP Management Corp.

 

a Florida corporation

Nashville Club Management, Inc.

 

a Tennessee corporation

New England Country Club Management, Inc.

 

a Massachusetts corporation

Northwood Management Corp.

 

a Georgia corporation

Oak Pointe Country Club, Inc.

 

a Michigan corporation

Oakmont Management Corp.

 

a Texas corporation

Operations Company for Homestead, Inc.

 

a Virginia corporation

Owners Club Asset Company

 

a Delaware corporation

Piedmont Club, Inc.

 

a North Carolina corporation

Piedmont Golfers’ Club LLC

 

a South Carolina limited liability company

Pyramid Club Management, Inc.

 

a Pennsylvania corporation

Quail Hollow Management, Inc.

 

an Ohio corporation

Queens Harbour Corporation

 

a Florida corporation

Renaissance Club, Inc.

 

a Michigan corporation

Richardson Country Club Corp.

 

a Texas corporation

River Creek Country Club, Inc.

 

a Virginia corporation

Rivers Club, Inc.

 

a Pennsylvania profit corporation

 


 

ENTITY

 

JURISDICTION OF ORGANIZATION

Shady Valley Management Corp.

 

a Texas corporation

Shoreby Club Management, Inc.

 

an Ohio corporation

Silver Lake Management Corp.

 

an Ohio corporation

Skyline Club, Inc.

 

an Indiana corporation

Society Management, Inc.

 

a Nevada corporation

Southern Trace Country Club of Shreveport, Inc.

 

a Louisiana corporation

Stonebriar Management Corp.

 

a Texas corporation

Stonehenge Club, Inc.

 

a Virginia corporation

Tampa Palms Club, Inc.

 

a Florida corporation

The 191 Club, Inc.

 

a Georgia corporation

The Buckhead Club, Inc.

 

a Georgia corporation

The Club at Cimarron, Inc.

 

a Texas corporation

The Club at Society Center, Inc.

 

an Ohio corporation

The Commerce Club, Inc.

 

a South Carolina corporation

The Downtown Club, Inc.

 

a Texas corporation

The Manager of the Owner’s Club, Inc.

 

a South Carolina corporation

The Metropolitan Club of Chicago, Inc.

 

an Illinois corporation

The Owner’s Club, Inc.

 

a Delaware corporation

The Owner’s Club at Hilton Head, L.P.

 

a South Carolina limited partnership

The Owner’s Club of South Carolina, L.L.C.

 

a Delaware limited liability company

The Plaza Club of San Antonio, Inc.

 

a Texas corporation

The Summit Club, Inc.

 

an Alabama corporation

The University Club, Inc.

 

a Mississippi corporation

Timarron Golf Club, Inc.

 

a Texas corporation

Tower City Club of Virginia, Inc.

 

a Virginia corporation

Tower Club of Dallas, Inc.

 

a Texas corporation

Tower Club, Inc.

 

a Florida corporation

Town Point Club, Inc.

 

a Virginia corporation

Treesdale Country Club, Inc.

 

a Pennsylvania corporation

UMass Club Management, LLC

 

a Delaware limited liability company

UNC Alumni Club Management, Inc.

 

a North Carolina corporation

University Club Management Co., Inc.

 

a Florida corporation

University Club, Inc.

 

a Florida corporation

Walnut Creek Management Corporation

 

a Texas corporation

West Park Club, Inc.

 

a Texas corporation

Westlake City Club, Inc.

 

a Texas corporation

Wildflower Country Club, Inc.

 

a Texas corporation

Willow Creek Management, Inc.

 

a Texas corporation

Woodside Plantation Country Club, Inc.

 

a South Carolina corporation

 

 

Schedule VI

 

Surviving Indebtedness

 

1.                                       Indebtedness under that certain Note Purchase Agreement, dated as of April 8, 1996, by and among Textron Financial Corporation, as buyer, The Owners Club at Hilton Head, L.P., as seller, and The Manager of the Owner’s Club, Inc., as general partner, as amended by that certain Amendment Agreement, dated as of December 1, 1999, among The Owners Club at Hilton Head, L.P., as the Hilton Head Seller, The Owners Club at the Homestead, L.P., as the Homestead Seller, The Owners Club at Barton Creek, L.P., as the Barton Creek Seller, and Textron Financial Corporation, as buyer, with an outstanding balance with respect to the Hilton Head Timeshare Notes (as defined in the Note Purchase Agreement) of $107,307.99.

 

2.                                       Outstanding indebtedness of CCS, LLC pursuant to that certain Loan Agreement between CCS, LLC, as borrower, and Atlantic Capital Bank, as lender, dated as of October 15, 2010, as may be amended, amended and restated, supplemented or modified from time to time, with an outstanding balance of $4,002,491.67.

 

3.                                       Outstanding indebtedness of Stonebriar Country Club Joint Venture and Monarch Country Club, Inc. pursuant to that certain Loan Agreement among Stonebriar Country Club Joint Venture, as borrower, Monarch Country Club, Inc., as borrower and General Electric Capital Corporation, as lender, dated as of July 16, 2008, as may be amended, amended and restated, supplemented or modified from time to time, with an outstanding balance of $32,043,680.00.

 

4.                                       Outstanding obligations to JPMorgan Chase Bank, N.A. f/k/a Bank One, N.A. by ClubCorp USA, Inc., in relation to a corporate purchase card (P-Card), with an average daily balance of $250,000.

 

5.                                       Attributable Indebtedness in the aggregate amount of $17,991,786 as set forth below:

 

AB&C Leasing de Mexico

 

Cart Lease

 

$

197,345

 

Advanced Imaging

 

Copiers

 

$

1,424

 

AEL Financial

 

GPS System

 

$

40,860

 

Agricredit Acceptance LLC

 

Utility Carts

 

$

8,219

 

Cannon Financial Services

 

Copiers

 

$

85,602

 

CHG El Camino S.A.P. I de CV

 

Cart Lease

 

$

232,855

 

Equiverturf & Golf S.A. de C.V.

 

Golf Course Equipment

 

$

37,053

 

GE Capital

 

Golf Course Equipment

 

$

1,663,081

 

GPS Industries Inc.

 

GPS System

 

$

132,829

 

IKON Financial Services

 

Copiers

 

$

233,779

 

LCA Bank Corp

 

Radio System

 

$

14,536

 

PNC Equipment Finance

 

Golf Course Equipment

 

$

5,428,648

 

Proshot Investors, LLC

 

GPS System

 

$

102,965

 

Suntrust Equipment Finance

 

Golf Course Equipment

 

$

12,448

 

Textron Financial Corp.

 

Golf Carts

 

$

9,784,319

 

Wells Fargo Financial Leasing

 

Golf Course Equipment

 

$

15,823

 

 

 

Total:

 

$

17,991,786

 

 


 

6.                                       The following development loans:

 

ENTITY PROVIDING LOAN

 

ENTITY RECEIVING LOAN

 

PRINCIPAL

 

ACCRUED
INTEREST

 

TOTAL
INDEBTEDNESS

 

GP Bear’s Best Atlanta, Inc.

 

Bear’s Best Atlanta, L.P.

 

$

4,287,129

 

$

3,262,038

 

$

7,549,167

 

GP Bear’s Best Las Vegas, Inc.

 

Bear’s Best Las Vegas, Limited Partnership

 

$

7,255,294

 

$

6,294,115

 

$

13,549,409

 

Lionsgate Golf Club, Inc.

 

Nicklaus Golf Club, L.P. at LionsGate

 

$

2,509,744

 

$

1,751,901

 

$

4,261,645

 

ClubCorp International, Inc.

 

CG Inversiones S.A. de C.V.

 

$

6,297,925

 

$

2,403,396

 

$

8,701,321

 

ClubCorp Mexico, Inc.

 

Isla Maya Club de Golf, S.A. de C.V.

 

$

1,323,932

 

—

 

$

1,323,932

 

ClubCorp Mexico, Inc.

 

La Vista Club de Golf, S.A. de C.V.

 

$

5,920,912

 

$

6,009,152

 

$

11,930,064

 

 


 

Schedule VII
Local Counsel

 

STATE

 

LAW FIRM

AL

 

Bradley Arant Boult Cummings LLP

AZ

 

Greenberg Traurig, LLP

AR

 

Mitchell Williams Selig Gates Woodyard PLLC

CA

 

Brownstein Hyatt Farber Schreck, LLP

CO

 

Brownstein Hyatt Farber Schreck, LLP

DC

 

Greenberg Traurig, LLP

DE

 

Richards, Layton & Finger

FL

 

Greenberg Traurig, P.A.

GA

 

Greenberg Traurig, LLP

IL

 

Perkins Coie LLP

IN

 

Ice Miller LLP

KS

 

Shook, Hardy & Bacon L.L.P.

LA

 

Sher Garner Cahill Richter Klein & Hilbert L.L.C.

MA

 

Greenberg Traurig, LLP

MI

 

Dickinson Wright PLLC

MS

 

Harris Shelton Hanover Walsh, PLLC

NV

 

Brownstein Hyatt Farber Schreck, LLP

NY

 

Greenberg Traurig, LLP

NY

 

Perkins Coie LLP

NC

 

Womble Carlyle Sandridge & Rice, PLLC

OH

 

Greenberg Traurig, LLP

PA

 

Greenberg Traurig, LLP

SC

 

Womble Carlyle Sandridge & Rice, PLLC

TN

 

Harris Shelton Hanover Walsh, PLLC

TX

 

Gardere Wynne Sewell, L.L.P.

VA

 

Greenberg Traurig, LLP

WA

 

Perkins Coie LLP

WI

 

Quarles & Brady LLP

 


 

Schedule 2.01(a)
Term B Commitment

 

LENDER

 

TERM B COMMITMENT

 

Citicorp North America, Inc.

 

$

310,000,000

 

 


 

Schedule 2.01(b)
Revolving Credit Commitment

 

LENDER

 

REVOLVING CREDIT COMMITMENT

 

Citicorp North America, Inc.

 

$

50,000,000

 

 


 

Schedule 2.03(l)

Letters of Credit Issued Prior to the Closing Date

 

1.                                       Letter of Credit issued by Citigroup Global Markets Realty Corp., for the account of ClubCorp Mezzanine Borrower, LLC, Fillmore BC REIT Mezzanine, LLC and Fillmore Homestead REIT, Mezzanine, LLC, for/on behalf of ClubCorp, Inc., to benefit Travelers Casualty & Surety Company of America, in the principal amount of $2,540,000.00

 

2.                                       Letter of Credit issued by Citigroup Global Markets Realty Corp., for the account of ClubCorp, Inc., to benefit Liberty Mutual Insurance Company, in the principal amount of $17,155,000.00

 

 

Schedule 4.01(a)(v)
Mortgaged Property

 

Club Name

 

Owner

 

Address

 

City

 

State

 

Zip

Aliso Viejo Country Club

 

Aliso Viejo Golf Club Joint Venture

 

33 Santa Barbara

 

Aliso Viejo

 

CA

 

92656

Anthem Golf and Country Club

 

Anthem Golf, LLC

 

2708 West Anthem Club Drive

 

Anthem

 

AZ

 

85086

April Sound Country Club

 

April Sound Management Corp.

 

1000 April Sound Boulevard

 

Montgomery

 

TX

 

77356-5890

Aspen Glen Club

 

Aspen Glen Golf Club Management Company

 

0545 Bald Eagle Way

 

Carbondale

 

CO

 

81623

Bay Oaks Country Club

 

Bay Oaks Country Club, Inc.

 

14545 Bay Oaks Boulevard

 

Houston

 

TX

 

77059-4412

Braemar Country Club

 

ClubCorp Braemar Country Club, Inc.

 

4001 Reseda Boulevard

 

Tarzana

 

CA

 

91357

Brookhaven Country Club

 

Brookhaven Country Club, Inc.

 

3333 Golfing Green Drive

 

Farmers Branch

 

TX

 

75234-3798

Canyon Creek Country Club

 

Richardson Country Club Corp.

 

625 West Lookout Drive

 

Richardson

 

TX

 

75080-2199

Canyon Crest Country Club

 

ClubCorp Canyon Crest Country Club, Inc.

 

975 Country Club Drive

 

Riverside

 

CA

 

92506-3699

Canyon Gate Country Club

 

Canyon Gate at Las Vegas, Inc.

 

2001 Canyon Gate Drive

 

Las Vegas

 

NV

 

89117-5846

Club at Cimarron

 

The Club at Cimarron, Inc.

 

1200 S. Shary Road

 

Mission

 

TX

 

78572-7426

Coto De Caza Golf & Racquet Club

 

ClubCorp Coto Property Holdings, Inc.

 

25291 Vista Del Verde

 

Coto de Caza

 

CA

 

92679

Country Club of Gwinnett

 

ClubCorp Golf of Georgia, L.P.

 

3254 Clubside View Court

 

Snellville

 

GA

 

30039

Country Club of Hilton Head

 

Manager for CCHH, Inc.

 

70 Skull Creek Drive

 

Hilton Head Island

 

SC

 

29926

Countryside Country Club

 

Countryside Country Club, Inc.

 

3001 Countryside Blvd.

 

Clearwater

 

FL

 

33761-2721

Crow Canyon Country Club

 

ClubCorp Crow Canyon Management Corp.

 

711 Silver Lake Drive

 

Danville

 

CA

 

94526-6241

Debary Country Club

 

DeBary Management Corp.

 

300 Plantation Club Drive

 

DeBary

 

FL

 

32713

Deercreek Country Club

 

ClubCorp Golf of Florida, L.L.C.

 

7816 McLaurin Road North

 

Jacksonville

 

FL

 

32256

Desert Falls Country Club

 

ClubCorp Desert Falls Country Club, Inc.

 

1111 Desert Falls Parkway

 

Palm Desert

 

CA

 

92211

Devils Ridge Golf Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

5107 Linksland Drive

 

Holly Springs

 

NC

 

27540

Diamond Run Golf Club

 

Diamond Run Club, Inc.

 

132 Laurel Oak Drive

 

Sewickley

 

PA

 

15143

Eagles Landing Country Club

 

ClubCorp Golf of Georgia, L.P.

 

100 Eagle’s Landing Way

 

Stockbridge

 

GA

 

30281

East Lake Woodlands Country Club

 

ClubCorp Golf of Florida, L,L.C.

 

1055 East Lake Woodlands Pkwy

 

Oldsmar

 

FL

 

34677

Fair Oaks Ranch Golf & Country Club

 

Fair Oaks Club Corp.

 

7900 Fair Oaks Parkway

 

Fair Oaks Ranch

 

TX

 

78015

Firestone Country Club

 

Akron Management Corp.

 

452 East Warner Road

 

Akron

 

OH

 

44319-1994

Gainey Ranch Golf Club

 

GRanch Golf Club, Inc.

 

7600 Gainey Club Drive

 

Scottsdale

 

AZ

 

85258

Gleneagles Country Club

 

GCC Asset Management, Inc.

 

5401 West Park Blvd.

 

Plano

 

TX

 

75093-4199

Golden Bear Golf Club at Indigo Run

 

Indigo Run Asset Corp.

 

72 Golden Bear Way

 

Hilton Head Island

 

SC

 

29926

Greenbrier Country Club

 

Greenbrier Country Club, Inc.

 

1301 Volvo Parkway

 

Chesapeake

 

VA

 

23320-9420

 


 

Club Name

 

Owner

 

Address

 

City

 

State

 

Zip

Greenspoint Club

 

Greenspoint Club, Inc.

 

16925 Northchase Drive

 

Houston

 

TX

 

77060

Hackberry Creek Country Club

 

Hackberry Creek Country Club, Inc.

 

1901 W. Royal Lane

 

Irving

 

TX

 

75063-3214

Haile Plantation Golf & Country Club

 

HPG, L.C.

 

9905 SW 44th Avenue

 

Gainesville

 

FL

 

32608

Hearthstone Country Club

 

Heartstone Country Club, Inc.

 

7615 Ameswood Road

 

Houston

 

TX

 

77095-3301

Hunter’s Green Country Club

 

Hunter’s Green Acquisition Corp.

 

18101 Longwater Run Drive

 

Tampa

 

FL

 

33647

Knollwood Country Club

 

Knollwood Country Club, Inc.

 

16633 Baywood Lane

 

Granger

 

IN

 

46530-8866

Lakeway Golf Club

 

ClubCorp Golf of Texas, L.P. Hills II of Lakeway, Inc.

 

510 Lakeway Drive

 

Austin

 

TX

 

78734-4428

Las Colinas Country Club

 

Irving Club Acquisition Corp.

 

4400 N. O’Connor Road

 

Irving

 

TX

 

75062-2796

Le Club

 

Glendale Racquet Club, Inc.

 

2001 W. Good Hope Road

 

Milwaukee

 

WI

 

53209

Lochmere Golf Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

2511 Kildaire Farm Road

 

Cary

 

NC

 

27511

Lost Creek Country Club

 

Hill Country Golf, Inc.

 

2612 Lost Creek Boulevard

 

Austin

 

TX

 

78746-7150

Morgan Run Resort & Club

 

ClubCorp Golf of California, L.L.C.

 

5690 Cancha de Golf

 

Rancho Sante Fe

 

CA

 

92091

Nags Head Golf Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

5615 South Seachase Drive

 

Nags Head

 

NC

 

27959

Neuse Golf Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

918 Birkdale Drive

 

Clayton

 

NC

 

27527

Northwood Country Club

 

Northwood Management Corp.

 

3157 Club Drive

 

Lawrenceville

 

GA

 

30044-2524

Oak Pointe Country Club

 

Oak Pointe Country Club, Inc.

 

4500 Club Drive

 

Brighton

 

MI

 

48116-9754

Oakmont Country Club

 

Oakmont Management Corp.

 

1901 Oakmont Drive

 

Corinth

 

TX

 

76210

Piedmont Club

 

Piedmont Golfers’ Club LLC

 

14675 Piedmont Vista Drive

 

Haymarket

 

VA

 

20169

Porter Valley Country Club

 

ClubCorp Porter Valley Country Club, Inc.

 

19216 Singing Hills Drive

 

Northridge

 

CA

 

91326-1716

Quail Hollow Country Club

 

Quail Hollow Management, Inc.

 

11295 Quail Hollow Drive

 

Concord

 

OH

 

44077-9036

Queens Harbour Country Club

 

Queens Harbour Corporation

 

1131 Queen’s Harbour Blvd.

 

Jacksonville

 

FL

 

32225

Seville Golf & Country Club

 

AZ Club, LLC

 

6683 S. Clubhouse Drive

 

Gilbert

 

AZ

 

85298

Shadowridge Golf Club

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

1980 Gateway Drive

 

Vista

 

CA

 

92081-9031

Shady Valley Golf Club

 

Shady Valley Management Corp.

 

4001 West Park Row Drive

 

Arlington

 

TX

 

76013-2940

Southern Trace Country Club

 

Southern Trace Country Club of Shreveport, Inc.

 

200 Southern Trace Parkway

 

Shreveport

 

LA

 

71106-9343

Spring Valley Lake Country Club

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

13229 Spring Valley Pkwy. / SVL Box 7070

 

Victorville

 

CA

 

92395

Stonebridge Ranch Country Club

 

ClubCorp Golf of Texas, L.P.

 

7003 Beacon Hill

 

McKinney

 

TX

 

75070

Tampa Palms Golf & Country Club

 

Tampa Palms Club, Inc.

 

5811 Tampa Palms Boulevard

 

Tampa

 

FL

 

33647

The Club at Falcon Point

 

Fort Bend Acquisition Corp.

 

24503 Falcon Point Drive

 

Katy

 

TX

 

77494

The Clubs of Kingwood

 

Kingwood Country Club, Inc.

 

1700 Lake Kingwood Trail

 

Kingwood

 

TX

 

77339-3717

The Golf Club at Indigo Run

 

Indigo Run Asset Corp.

 

101 Berwick Drive

 

Hilton Head Island

 

SC

 

29926

 


 

Club Name

 

Owner

 

Address

 

City

 

State

 

Zip

The Hills at Lakeway

 

ClubCorp Golf of Texas, L.P.

 

26 Club Estates Parkway

 

Austin

 

TX

 

78738-1428

Timarron Country Club

 

Timarron Golf Club Inc.

 

1400 Byron Nelson Parkway

 

Southlake

 

TX

 

76092-9612

Treesdale Golf & Country Club

 

Treesdale Country Club, Inc.

 

One Arnold Palmer Drive

 

Gibsonia

 

PA

 

15044

Trophy Club Country Club

 

ClubCorp Golf of Texas, L.P.

 

500 Trophy Club Drive

 

Trophy Club

 

TX

 

76262

Walnut Creek Country Club

 

Walnut Creek Management Corporation

 

1151 Country Club Drive

 

Mansfield

 

TX

 

76063-2512

Wildflower Country Club

 

Wildflower Country Club, Inc.

 

4902 Wildflower Lane

 

Temple

 

TX

 

76502-4804

Woodside Plantation Country Club

 

Woodside Plantation Country Club, Inc.

 

1000 Woodside Plantation Drive

 

Aiken

 

SC

 

29803-7801

 

 

Schedule 5.03(b)
Liquor Licences
1.  Golf and CC Liquor Licenses

 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Firestone Country Club

 

Akron

 

OH

 

Akron Management Corp.

 

Same

 

0088255-00003 - State

0088255-00004 - State

0088255-00005 - State

0088255 - State

0088255-0010 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Anthem Golf and Country Club

 

Anthem

 

AZ

 

Anthem Golf, LLC

 

Same

 

6070324 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

April Sound Country Club

 

Montgomery

 

TX

 

April Sound Management Corp.

 

Same

 

BG299706 - State

MB248278 - State

BG299706 - County

MB248278 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Aspen Glen Club

 

Carbondale

 

CO

 

Aspen Glen Golf Club Management Company

 

Same

 

26-43475-0000 - State

26-43475-0000 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Seville Golf and Country Club

 

Gilbert

 

AZ

 

AZ Club, LLC

 

Same

 

6070567 - State

13471 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bay Oaks Country Club

 

Houston

 

TX

 

Bay Oaks Country Club, Inc.

 

Same

 

MB243751 - State

MB243751 - County

44013 - City

44014 - City

42440 - City

42441 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bluegrass Yacht & Country Club

 

Hendersonville

 

TN

 

Bluegrass Club, LLC

 

Same

 

98136 - State

28053 - State

0793 - City

28053 - City

98136 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Brookhaven Country Club

 

Dallas

 

TX

 

Brookhaven Country Club, Inc.

 

Golfing Branch Club

 

Note: 2006 Concession Agreement in place

 

N182786 - State

N182786 - County

 

YES

 

GC&CC

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Canyon Gate Country Club

 

Las Vegas

 

NV

 

Canyon Gate at Las Vegas, Inc.

 

Same

 

11049-3GE-01 - State

11049-30E-05 - State

11049-30E-06 - State

11049-30E-07 - State

11049-30E-09 - State

11049-30E-10 - State

11049-30E-11 - State

1049-20E-11 - State

1049-38E-10 - State

11049-20E-09 - State

11049-38E-07 - State

11049-20E-06 - State

11049-38E-05 - State

11049-20E-01 - State

L18-00038-4-00244 - City

L28-00004-4-000244 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Country Club of the South

 

Johns Creek

 

GA

 

CCS, LLC

 

Same

 

23132 - State

23133 - State

23134 - State

10-00007192 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Airways Municipal Golf Course

 

Fresno

 

CA

 

ClubCorp Airways Golf, Inc.

 

Same

 

40-452267 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Aliso Viejo Golf Club

 

Aliso Viejo

 

CA

 

ClubCorp Aliso Viejo Golf Club Joint Venture

 

ClubCorp Aliso Viejo Holding Corp.and ClubCorp GCL Corporation

 

467798 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Braemar Country Club

 

Tarzana

 

CA

 

ClubCorp Braemar Country Club, Inc.

 

Same

 

452272 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Canyon Crest Country Club

 

Riverside

 

CA

 

ClubCorp Canyon Crest Country Club, Inc.

 

Same

 

452265 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Coto de Caza Golf & Racquet Club

 

Coto de Caza

 

CA

 

ClubCorp Coto Property Holdings, Inc.

 

Same

 

452289 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Crow Canyon Country Club

 

Danville

 

CA

 

ClubCorp Crow Canyon Management Corp.

 

Same

 

452246 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Desert Falls Country Club

 

Palm Desert

 

CA

 

ClubCorp Desert Falls Country Club, Inc.

 

Same

 

452254 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Morgan Run Resort & Club

 

Rancho Santa Fe

 

CA

 

ClubCorp Golf of California, L.L.C.

 

Same

 

352142 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deercreek Country Club

 

Jacksonville

 

FL

 

ClubCorp Golf of Florida, L.L.C.

 

Same

 

BEV2607459 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Eastlake Woodlands Country Club

 

Oldsmar

 

FL

 

ClubCorp Golf of Florida, L.L.C.

 

Same

 

BEV6209460 - State

BEV6209458 - State

BEV6209459 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Eagle’s Landing Country Club

 

Stockbridge

 

GA

 

ClubCorp Golf of Georgia, L.P.

 

Same

 

30519 - State

39222 - State

26458 - State

46066 - State

 

NO

 

GC&CC

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Country Club of Gwinnett

 

Snelville

 

GA

 

ClubCorp Golf of Georgia, L.P.

 

Same

 

32202 - State

2010000820 - County

20100181 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Devil’s Ridge Golf Club

 

Holly Springs

 

NC

 

ClubCorp Golf of North Carolina, L.L.C.

 

Same

 

00090880AJ - State

00090880AN - State

00090880AL - State

00090880MB - State

00090880AJ - County

00090880AL - County

00090880AN - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Lochmere Golf Club

 

Cary

 

NC

 

ClubCorp Golf of North Carolina, L.L.C.

 

Same

 

00090879AJ - State

00090881AJ-998 - County

00090879AJ - County

10-218 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nags Head Golf Links

 

Note: Includes (1) Nags Head and (2) Village Beach

 

Nags Head

 

NC

 

ClubCorp Golf of North Carolina, L.L.C.

 

Same

 

(1) Nags Head

00090876AJ - State

00090876AL - State

00090876MB - State

 

(2) Village Beach

00090874AJ - State

00090874AL - State

00090874MB - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Neuse Golf Club

 

Clayton

 

NC

 

ClubCorp Golf of North Carolina, L.L.C.

 

Same

 

00090877AJ - State

09990877AL - State

960268 - County

960269 - County

620/1517 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Clubs of Lakeway

 

Note 1: The “Clubs of Lakeway” collectively refers to: (1) The Hills of Lakeway, (2) Live Oak, (3) Yaupon, (4) World of Tennis and (5) Flintrock

Note 2: Hills II of Lakeway, Inc. holds title to Flintrock

 

Austin

 

TX

 

ClubCorp Golf of Texas, L.P.

 

Lakeway Clubs, Inc.

 

Note: 2006 Concession Agreement in place

 

(1) Live Oak

MB546130 - State

MB546130 - County

 

(2) The Hills

MB253731 - State

MB253731 - County

 

(3) Yaupon

MB546132

 

(4) World of Tennis

BG633195 - State

MB546132 - State

 

(5) See Hills II Flintrock

 

NO

 

GC&CC

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stonebridge Ranch Country Club

 

Note: Includes (1) Stonebridge Ranch and (2) The Ranch Country Club

 

McKinney

 

TX

 

ClubCorp Golf of Texas, L.P.

 

Lakeway Clubs, Inc.

 

Note: 2006 Concession Agreement in place

 

(1) Stonebridge Ranch

RM572839 - State

RM572839 - County

131 - City

128 - City

MRM572839 - City

 

(2) The Ranch

RM574065 - State

RM574065 - County

3645 - City

124 - City

MRM574065-10 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Trophy Club Country Club

 

Southlake

 

TX

 

ClubCorp Golf of Texas, L.P.

 

Lakeway Clubs, Inc.

 

Note: 2006 Concession Agreement in place

 

RM617210 - State

RM617210 - County

APB.09.023 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Granite Bay Golf Club

 

Granite Bay

 

CA

 

Granite Bay Limited Partnership

 

ClubCorp Granite Bay Management, Inc.

 

299360 - State

299354 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Indian Wells Country Club

 

Indian Wells

 

CA

 

ClubCorp IW Golf Club, Inc.

 

Same

 

452282 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stone Creek Golf Club

 

Ocala

 

FL

 

ClubCorp Management Company for Stone Creek, LLC

 

Same

 

BEV5202887 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mission Hills Country Club

 

Rancho Mirage

 

CA

 

ClubCorp Mission Hills Country Club, Inc.

 

Same

 

473577 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Porter Valley Country Club

 

Northridge

 

CA

 

ClubCorp Porter Valley Country Club, Inc.

 

Same

 

452277 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shadowridge Country Club

 

Vista

 

CA

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

Same

 

452273 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Spring Valley Lake Country Club

 

Victorville

 

CA

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

Same

 

452262 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Teal Bend Golf Club

 

Sacramento

 

CA

 

ClubCorp Teal Bend Golf Club, Inc.

 

Same

 

452269 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Turkey Creek Country Club

 

Lincoln

 

CA

 

ClubCorp Turkey Creek Golf Club, Inc.

 

Same

 

452271 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Countryside Country Club

 

Clearwater

 

FL

 

Countryside Country Club, Inc.

 

Same

 

BEV6200079 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Currituck Club

 

Corolla

 

NC

 

Currituck Golf, LLC

 

ClubCorp Golf of North Carolina, L.L.C.

 

00150207AJ - State

00150207AN - State

00150207AL - State

00150207MB - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Debary Golf & Country Club

 

Debary

 

FL

 

DeBary Management Corp.

 

Same

 

BEV7405174 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diamond Run Golf Club

 

Sewickley

 

PA

 

Diamond Run Club, Inc.

 

Same

 

PGR155 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Empire Ranch Golf Club

 

Folsorn

 

CA

 

Empire Ranch, LLC

 

Same

 

386161 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair Oaks Ranch & Country Club

 

Fair Oaks Ranch

 

TX

 

Fair Oaks Club Corp.

 

Same

 

MB242999 - State

MB242999 - County

 

NO

 

GC&CC

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Club at Viniterra

 

New Kent

 

VA

 

Farms of New Kent Management, LLC

 

Farms of New Kent Management, LLC (possible dual or with non-ClubCorp Entity)

 

Pending

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Falcon Point Club

 

Katy

 

TX

 

Fort Bend Acquisition Corp.

 

Same

 

BG296559 - State

MB245697 - State

BG296559 - County

MB245697 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gleneagles Country Club

 

Plano

 

TX

 

GCC Asset Management, Inc.

 

Same

 

RM617248 - State

RM617248 - County

158 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bear’s Best Atlanta

 

Atlanta

 

GA

 

Bear’s Best Atlanta, LP

 

GP Bear’s Best Atlanta, Inc.

 

44547 - State

20100309 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bear’s Best Las Vegas

 

Las Vegas

 

NV

 

Bear’s Best Las Vegas, Limited Partnership

 

Same

 

2001748.LIQ.118 - County

2001747.LIQ.128 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gainey Ranch Country Club

 

Scottsdale

 

AZ

 

GRanch Golf Club, Inc.

 

Same

 

6070171 - State

751733 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Greenbrier Country Club

 

Chesapeake

 

VA

 

Greenbrier Country Club, Inc.

 

Same

 

57599 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hackberry Creek Country Club

 

Irving

 

TX

 

Hackberry Creek Country Club, Inc.

 

Same

 

MB560892 - State

MB560892 - County

MB560892 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Haile Plantation Golf & Country Club

 

Gainesville

 

FL

 

Haile Plantation Management Corp.

 

Same

 

BEV1102089 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hearthstone Country Club

 

Houston

 

TX

 

Hearthstone Country Club, Inc.

 

Same

 

MB528375 - State

MB528375 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Lost Creek Country Club

 

Austin

 

TX

 

Hill Country Golf, Inc.

 

Same

 

MB532997 - State

MB532997 - County

L0532 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hills II (Flintrock)

 

Austin

 

TX

 

Hills II of Lakeway, Inc.

 

Lakeway Clubs, Inc.

 

Note: 2006 Concession Agreement in place

 

MB637867 - State

MB637867 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hunter’s Green Country Club

 

Tampa

 

FL

 

Hunter’s Green Acquisition Corp.

 

Same

 

BEV3907650 - State

BEV3907651 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Golden Bear Golf Club

 

Hilton Head

 

SC

 

Indigo Run Asset Corp.

 

Same

 

320417134-LOP - State

32041713-PBW - State

32041713-PLB - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Golf Club at Indigo Run

 

Hilton Head

 

SC

 

Indigo Run Asset Corp.

 

Same

 

32041736-PLB - State

32041736-LOP - State

32041736-PBW - State

 

NO

 

GC&CC

 

 

 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Las Colinas Country Club

 

Irving

 

TX

 

Irving Club Acquisition Corp.

 

Same

 

MB563489 - State

MB563489 - County

@00019404 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Clubs of Kingwood

 

Note: “The Clubs of Kingwood” collectively refers to: (1) Deerwood Club and (2) Kingwood Club

 

Kingwood

 

TX

 

Kingwood Country Club, Inc.

 

Same

 

(1) Kingwood

MB426610 - State

MB426610 - County

29279 - City

29278 - City

29263 - City

26260 - City

 

(2) Deerwood

MB415602 - State

MB415602 - County

33122 - City

35251 - City

35249 - City

36193 - City

36257 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Knollwood Country Club

 

Granger

 

IN

 

Knollwood Country Club, Inc.

 

Same

 

RR7183265 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Laurel Springs Golf Club

 

Suwanee

 

GA

 

ClubCorp LSprings, L.P.

 

Same

 

38090 - State

10-00022 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nicklaus Golf Club at Lions Gate

 

Overland Park

 

KS

 

Nicklaus Golf Club, L.P., at LionsGate

 

LionsGate Golf Club, Inc.

 

10-019-1260-02 - State

ABC-0010054 - City

ABC-0010053 - City

2008-15 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Eagle Ridge Golf Club and The Preserve

 

Summerfiled

 

FL

 

Management Company for Eagle Ridge and The Preserve

 

Same

 

BEV5202702 - State

BEV5202701 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Country Club of Hilton Head

 

Hilton Head

 

SC

 

Manager for CCHH, Inc.

 

Same

 

32041738-PLB - State

32041738-PBW - State

32041738-LOP - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Monarch Country Club

 

Palm City

 

FL

 

Monarch Country Club, Inc.

 

Same

 

BEV5301193 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ipswich Country Club

 

Ipswich

 

MA

 

New England Country Club Management, Inc.

 

Same

 

56600022 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Northwood Country Club

 

Lawrenceville

 

GA

 

Northwood Management Corp.

 

Same

 

4378 - State

20100182 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Oak Point Country Club

 

Brighton

 

MI

 

Oak Pointe Country Club, Inc.

 

Same

 

10934 - State

40713 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Oakmont Country Club

 

Corinth

 

TX

 

Oakmont Management Corp.

 

Same

 

RM567598 - State

RM567598 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Piedmont Golf Club

 

Haymarket

 

VA

 

Piedmont Golfers’ Club LLC

 

Same

 

13701 - State

10-L04604 - County

10-L04714 - County

 

NO

 

GC&CC

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Quail Hollow Country Club

 

Painesville

 

OH

 

Quail Hollow Management, Inc.

 

Same

 

7129670-0005 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Queens Harbour Country Club

 

Jacksonville

 

FL

 

Queens Harbour Corporation

 

Same

 

BEV2604447 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Canyon Creek Country Club

 

Richardson

 

TX

 

Richardson Country Club Corp.

 

Same

 

RM626389 - State

RM626389 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

River Creek Country Club

 

Leesburg

 

VA

 

River Creek Country Club, Inc.

 

Same

 

77483 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shady Valley Country Club

 

Arlington

 

TX

 

Shady Valley Management Corp.

 

Same

 

MB243346 - State

MB243346 - County

000002747 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Silver Lake Country Club

 

Silver Lake

 

OH

 

Silver Lake Management Corp.

 

Same

 

8152376 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Southern Trace Country Club

 

Shreveport

 

LA

 

Southern Trace Country Club of Shreveport, Inc.

 

Same

 

900001258 - State

00224987 - City

00224886 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stonebriar Country Club

 

Frisco

 

TX

 

Stonebriar Country Club Joint Venture

 

Stonebriar Management Corp.

 

RM528913 -State

RM528913 - County

A02-0057 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stonehenge Golf & Country Club

 

Richmond

 

VA

 

Stonehenge Club, Inc.

 

Same

 

72186 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tampa Palms Golf & Country Club

 

Tampa

 

FL

 

Tampa Palms Club, Inc.

 

Same

 

BEV3904025 - State

BEV3904025 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Club at Cimarron

 

Mission

 

TX

 

The Club at Cimarron, Inc.

 

Same

 

MB250311 - State

BG317637 - State

MB250311 - County

BG317637 - County

MB250311 - City

BG317637 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Timarron Country Club

 

Southlake

 

TX

 

Timarron Golf Club, Inc.

 

Same

 

MB414775 - State

MB414775 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Treesdale Golf & Country Club

 

Gibsonia

 

PA

 

Treesdale Country Club, Inc.

 

Same

 

PGR97 - State

AP97 - State

SS97 - State

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Walnut Creek Country Club

 

Mansfield

 

TX

 

Walnut Creek Management Corporation

 

Same

 

RM641078 - State

RM641078 - County

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wildflower Country Club

 

Temple

 

TX

 

Wildflower Country Club, Inc.

 

Same

 

RM529980 - State

RM529980 - County

11-00001164 - City

11-00001165 - City

 

NO

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Willow Creek Golf Club

 

Spring

 

TX

 

Willow Creek Management, Inc.

 

Northcrest Golf Club

 

Note: 2006 Concession Agreement in place

 

N243811 - State

PE243811 - County

 

YES

 

GC&CC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Woodside Plantation Country Club

 

Aiken

 

SC

 

Woodside Plantation Country Club, Inc.

 

The Club at Woodside Plantation

 

320202516-PLC - State

320202516-PBW - State

1687702-PLC

 

YES

 

GC&CC

 


 

Schedule 5.03(b)
2.  Business & Sports Liquor Licenses

 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital City Club - Montgomery

 

Montgomery

 

AL

 

Capital City Club of Montgomery, Inc.

 

Same

 

000374151 - State

6369 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital City Club - Raleigh/Cardinal Club

 

Note: Comprised of (1) Capital City Club and (2) Cardinal Club

 

Raleigh

 

NC

 

Capital City Club of Raleigh, Inc.

 

Same

 

(1) Capital City

Club 00149741AJ-999 State

00149741MB State

00149741AN State

00149741AL State

00149741AR State

00149741CP State

00149741MB (AJ-999) State

00149741AJ County

00149741AL County

00149741AN County

 

(2) Cardinal Club

00149742AJ-999 State

00149742MB State

00149742AN State

00149742AL State

00149742AR State

00149742CP State

00149742MB State

00149742AJ County

00149742AL County

00149742AN County

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Centre Club - Tampa

 

Tampa

 

FL

 

Centre Club, Inc.

 

Same

 

BEV3902643 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Citrus Club (aka Citrus Athletic Club)

 

Orlando

 

FL

 

Citrus Club, Inc.

 

Same

 

BEV5802268 - State

BEV5803644 - State

BEV5803645 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

City Club of Washington (Columbia Square and Franklin Square)

 

Note: Comprised of (1) City Club of Washington at Columbia Square and (2) City Club of Washington at Franklin Square

 

Washington

 

DC

 

City Club of Washington, Inc.

 

Same

 

(1) Columbia Square

75206xxx-39101633 - State

 

(2) Franklin Square

15206xxxx69000231 - State

 

NO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Boston College Club (aka Club at Boston College)

 

Boston

 

MA

 

Club at Boston College, Inc.

 

Same

 

11600062 - State

CV7AL0024 - City

 

NO

 

B&S

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Club Le Conte

 

Knoxville

 

TN

 

Club Le Conte, Inc.

 

Same

 

P0101977046, #6434 - City

16156 - City

16156 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

City Club on Bunker Hill

 

Los Angeles

 

CA

 

ClubCorp Bunker Hill Club, Inc.

 

Same

 

(1) 57-452281 - State

(2) 58-452281 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Center Club - Costa Mesa

 

Costa Mesa

 

CA

 

ClubCorp Center Club, Inc.

 

Same

 

57-452275 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Silicon Valley Capital Club

 

San Jose

 

CA

 

ClubCorp San Jose Club, Inc.

 

Same

 

57-452261 - State

58-452261- State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

University Club Atop Symphony Towers

 

San Diego

 

CA

 

ClubCorp Symphony Towers Club, Inc.

 

Same

 

58-452270 - State

47-452270 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Texas Tech Club

 

Lubbock

 

TX

 

ClubCorp TTC, LLC

 

Same

 

MB753897 - State

MB753897 - County

MB753897 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital City Club (aka Capital City Club Columbia)

 

Columbia

 

SC

 

Columbia Capital City Club Corp.

 

The Club at Columbia Capital

 

Note: 2006 Concession Agreement in place

 

320179061PLC - State

320179061PWB - State

 

YES

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Columbia Tower Club

 

Seattle

 

WA

 

Columbia Tower Club, Inc.

 

Same

 

600-604-537-001-0003 - State

600-604-537-001-0001 - State

600-604-537-001 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dayton Racquet Club

 

Dayton

 

OH

 

Dayton Racquet Club, Inc.

 

Same

 

1990122 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

First City Club

 

Savannah

 

GA

 

First City Club Management, Inc.

 

Same

 

20362 - State

 

NO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Le Club

 

Milwaukee

 

WI

 

Glendale Racquet Club, Inc.

 

Glendale Management Corp.

 

40470 - City

10-003 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Greenspoint Club

 

Houston

 

TX

 

Greenspoint Club, Inc.

 

Same

 

MB252340 - State

MB252340 - County

474435 - City

44436 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Harbour Club

 

Charleston

 

SC

 

Harbour Club of Charleston, Inc.

 

The Club at Harbour

 

Note: 2006 Concession Agreement in place

 

32010080-PLC - State

32010080-PBW - State

 

YES

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Houston City Club

 

Houston

 

TX

 

Houston City Club, Inc.

 

Same

 

MB532344 - State

MB532344 - County

44009 - City

44011 - City

44012 - City

44010 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

La Cima Club

 

Irving

 

TX

 

La Cima Club, Inc.

 

Same

 

MB244451 - State

MB244451 - County

00017098 @0009119 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Mid-America Club

 

Chicago

 

IL

 

MAC Club, LLC

 

Same

 

09-1A-0077788 - State

1801754 - City

 

NO

 

B&S

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

University of Texas Club

 

Austin

 

TX

 

Memorial Stadium Club Management Corp.

 

Same

 

MB438025 - State

MB438025 - County

MB438025 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Crescent Club

 

Memphis

 

TN

 

Memphis City Club, Inc.

 

Same

 

12895 - State

98019 - State

3190 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nashville City Club

 

Nashville

 

TN

 

Nashville Club Management, Inc.

 

Not a ClubCorp Entity

 

Unknown - Owner renews

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Piedmont Club

 

Winston-Salem

 

NC

 

Piedmont Club, Inc.

 

Same

 

00149744AJ - State

00149744AL - State

00149744AN - State

00149744CP - State

00149744MB - State

902916 - County

57083 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pyramid Club

 

Philadelphia

 

PA

 

Pyramid Club Management, Inc.

 

Same

 

R 3472 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Renaissance - Detroit and Skyline Club

 

Note: Consists of (1) Renaissance Club and (2) Skyline Club

 

Detroit & Southfield

 

MI

 

Renaissance Club, Inc.

 

Same

 

(1) Renaissance

924-2010/12001-2010 - State

 

(2) Skyline

79503-2010/79504-2010 - State

 

NO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rivers Club

 

Pittsburgh

 

PA

 

Rivers Club, Inc.

 

Rivers Club

 

CC1108 - State

 

YES

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shoreby Club

 

Bratenahi

 

OH

 

Shoreby Club Management, Inc.

 

Same

 

8102722-0001 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Skyline Club - Indianapolis

 

Indianapolis

 

IN

 

Skyline Club, Inc.

 

Same

 

RR4909422 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

191 Club

 

Atlanta

 

GA

 

The 191 Club, Inc.

 

Same

 

30040 - State

28960 - State

18830-A21 - City

18830-A20 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Buckhead Club

 

Atlanta

 

GA

 

The Buckhead Club, Inc.

 

Same

 

54137 - State

54138 - State

11551-LGB 011511A21 - City

11551-LGB. 11511A20 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Club at Key Center

 

Cleveland

 

OH

 

The Club at Society Center, Inc.

 

Same

 

1571351 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Commerce Club

 

Greenville

 

SC

 

The Commerce Club, Inc.

 

The Club at Greenville, Incorporated

 

Note: 2006 Concession Agreement in place

 

320187891-PBW - State

320187891-PLC - State

 

YES

 

B&S

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Downtown Clubs

 

Note: The “Downtown Clubs” collectively refers to (1) Downtown Club at Houston Center, (2) Downtown Club at the Plaza (aka Plaza Club at Downtown) and (3) Downtown Club at the Met (aka Met Business and Sports Club)

 

Houston

 

TX

 

The Downtown Club, Inc.

 

Same

 

(1) Houston Center Club

MB441459 - State

MB441459 - County

44002 - City

44005 - City

44003 - City

44004 - City

 

(2) Plaza Club

MB248084 - State

MB248084 - County

36092 - City

36095 - City

36093 - City

36094 - City

 

(3) Met Business and Sports Club

MB502379 - State

MB502379 - County

39287 - City

39286 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Metropolitan Club - Chicago

 

Chicago

 

IL

 

The Metropolitan Club of Chicago, Inc.

 

Same

 

45116 - State

09-1A-0036922 - State

10-1B-0055520 - State

45116 - City

1299285 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Plaza Club - San Antonio

 

San Antonio

 

TX

 

The Plaza Club of San Antonio, Inc.

 

Same

 

MB243446 - State

MB243446 - County

102916 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Summit Club

 

Birmingham

 

AL

 

The Summit Club, Inc.

 

Same

 

000335237 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

University Club of Jackson

 

Jackson

 

MS

 

The University Club, Inc.

 

Same

 

25-05051-9 - State

1696 - State

 

NO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tower Club - Tysons Corner

 

Vienna

 

VA

 

Tower City Club of Virginia, Inc.

 

Same

 

59807 - State

1027420 - County

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tower Club - Dallas

 

Dallas

 

TX

 

Tower Club of Dallas, Inc.

 

Dallas Tower Club, Inc.

 

MB173434 - State

MB173434 - County

MB173434 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tower Club - Ft. Lauderdale

 

Ft. Lauderdale

 

FL

 

Tower Club, Inc.

 

Same

 

BEV1601886 - State

BEV1605169 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Town Point Club

 

Norfolk

 

VA

 

Town Point Club, Inc.

 

Same

 

37007 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

University of Massachusetts Club

 

Boston

 

MA

 

UMASS Club Management, LLC

 

Same

 

11600380 - State

11600380 CLEAL0009 - City

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Carolina Club

 

Chapel Hill, Raleigh

 

NC

 

UNC Alumni Club Management, Inc.

 

Not a ClubCorp Entity

 

Unknown - Owner renews

 

NO

 

B&S

 


 

Name of Club

 

CITY

 

STATE

 

Club Entity

 

Liquor License Holder

 

Liquor License #
(State, County, City)

 

Non Profit

 

Category

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

University Club at Florida State University (aka University Center Club (FSU))

 

Tallahassee

 

FL

 

University Club Management Co., Inc.

 

University Club Management Co., Inc. and Seminole Boosters, Inc. (not a ClubCorp entity)

 

BEV4702978 - State

BEV4703442 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

University Club of Jacksonville

 

Jacksonville

 

FL

 

University Club, Inc.

 

Same

 

BEV2600209 - State

 

NO

 

B&S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Westlake Club

 

Houston

 

TX

 

Westlake City Club, Inc.

 

West Park Club Inc.

 

MB206940 - State

MB206940 - County

46522 - City

46527 - City

46525 - City

46526 - City

 

NO

 

B&S

 

 

 

Schedule 5.07(b)
Real Property*
(*This schedule contains all real property owned, leased or managed by any Restricted Subsidiary
as of the Closing Date showing the street address and state)

 

Club Name

 

Owner/Tenant/Manager

 

Address

 

City

 

State

 

Zip

OWNED

Aliso Viejo Country Club

 

Aliso Viejo Golf Club Joint Venture

 

33 Santa Barbara

 

Aliso Viejo

 

CA

 

92656

Anthem Golf and Country Club

 

Anthem Golf, LLC

 

2708 West Anthem Club Drive

 

Anthem

 

AZ

 

85086

April Sound Country Club

 

April Sound Management Corp.

 

1000 April Sound Boulevard

 

Montgomery

 

TX

 

77356-5890

Aspen Glen Club

 

Aspen Glen Golf Club Management Company

 

0545 Bald Eagle Way

 

Carbondale

 

CO

 

81623

Bay Oaks Country Club

 

Bay Oaks Country Club, Inc.

 

14545 Bay Oaks Boulevard

 

Houston

 

TX

 

77059-4412

Braemar Country Club

 

ClubCorp Braemar Country Club, Inc.

 

4001 Reseda Boulevard

 

Tarzana

 

CA

 

91357

Brookhaven Country Club

 

Brookhaven Country Club, Inc.

 

3333 Golfing Green Drive

 

Farmers Branch

 

TX

 

75234-3798

Canyon Creek Country Club

 

Richardson Country Club Corp.

 

625 West Lookout Drive

 

Richardson

 

TX

 

75080-2199

Canyon Crest Country Club

 

ClubCorp Canyon Crest Country Club, Inc.

 

975 Country Club Drive

 

Riverside

 

CA

 

92506-3699

Canyon Gate Country Club

 

Canyon Gate at Las Vegas, Inc.

 

2001 Canyon Gate Drive

 

Las Vegas

 

NV

 

89117-5846

Club at Cimarron

 

The Club at Cimarron, Inc.

 

1200 S. Shary Road

 

Mission

 

TX

 

78572-7426

Coto De Caza Golf & Racquet Club

 

ClubCorp Coto Property Holdings, Inc.

 

25291 Vista Del Verde

 

Coto de Caza

 

CA

 

92679

Country Club of Gwinnett

 

ClubCorp Golf of Georgia, L.P.

 

3254 Clubside View Court

 

Snellville

 

GA

 

30039

Country Club of Hilton Head

 

Manager for CCHH, Inc.

 

70 Skull Creek Drive

 

Hilton Head Island

 

SC

 

29926

Countryside Country Club

 

Countryside Country Club, Inc.

 

3001 Countryside Blvd.

 

Clearwater

 

FL

 

33761-2721

Cozumel Country Club

 

Isla Maya Club de Golf, S.A. de C.V.

 

Carretera Costera Norte KM. 6.5

Interior Casa Club

 

Cozumel

 

Quintana Roo

 

Mexico 77600

Crow Canyon Country Club

 

ClubCorp Crow Canyon Management Corp.

 

711 Silver Lake Drive

 

Danville

 

CA

 

94526-6241

Debary Country Club

 

DeBary Management Corp.

 

300 Plantation Club Drive

 

DeBary

 

FL

 

32713

Deercreek Country Club

 

ClubCorp Golf of Florida, L.L.C.

 

7816 McLaurin Road North

 

Jacksonville

 

FL

 

32256

Desert Falls Country Club

 

ClubCorp Desert Falls Country Club, Inc.

 

1111 Desert Falls Parkway

 

Palm Desert

 

CA

 

92211

Devils Ridge Golf Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

5107 Linksland Drive

 

Holly Springs

 

NC

 

27540

Diamond Run Golf Club

 

Diamond Run Club, Inc.

 

132 Laurel Oak Drive

 

Sewickley

 

PA

 

15143

Eagles Landing Country Club

 

ClubCorp Golf of Georgia, L.P.

 

100 Eagle’s Landing Way

 

Stockbridge

 

GA

 

30281

East Lake Woodlands Country Club

 

ClubCorp Golf of Florida, L,L.C.

 

1055 East Lake Woodlands Pkwy

 

Oldsmar

 

FL

 

34677

Fair Oaks Ranch Golf & Country Club

 

Fair Oaks Club Corp.

 

7900 Fair Oaks Parkway

 

Fair Oaks Ranch

 

TX

 

78015

Firestone Country Club

 

Akron Management Corp.

 

452 East Warner Road

 

Akron

 

OH

 

44319-1994

Gainey Ranch Golf Club

 

GRanch Golf Club, Inc.

 

7600 Gainey Club Drive

 

Scottsdale

 

AZ

 

85258

Gleneagles Country Club

 

GCC Asset Management, Inc.

 

5401 West Park Blvd.

 

Plano

 

TX

 

75093-4199

Golden Bear Golf Club at Indigo Run

 

Indigo Run Asset Corp.

 

72 Golden Bear Way

 

Hilton Head Island

 

SC

 

29926

Greenbrier Country Club

 

Greenbrier Country Club, Inc.

 

1301 Volvo Parkway

 

Chesapeake

 

VA

 

23320-9420

Greenspoint Club

 

Greenspoint Club, Inc.

 

16925 Northchase Drive

 

Houston

 

TX

 

77060

Hackberry Creek Country Club

 

Hackberry Creek Country Club, Inc.

 

1901 W. Royal Lane

 

Irving

 

TX

 

75063-3214

 


 

Club Name

 

Owner/Tenant/Manager

 

Address

 

City

 

State

 

Zip

Haile Plantation Golf & Country Club

 

HPG, L.C.

 

9905 SW 44th Avenue

 

Gainesville

 

FL

 

32608

Hearthstone Country Club

 

Heartstone Country Club, Inc.

 

7615 Ameswood Road

 

Houston

 

TX

 

77095-3301

Hunter’s Green Country Club

 

Hunter’s Green Acquisition Corp.

 

18101 Longwater Run Drive

 

Tampa

 

FL

 

33647

Knollwood Country Club

 

Knollwood Country Club, Inc.

 

16633 Baywood Lane

 

Granger

 

IN

 

46530-8866

Lakeway Golf Club

 

ClubCorp Golf of Texas, L.P.

Hills II of Lakeway, Inc.

 

510 Lakeway Drive

 

Austin

 

TX

 

78734-4428

Las Colinas Country Club

 

Irving Club Acquisition Corp.

 

4400 N. O’Connor Road

 

Irving

 

TX

 

75062-2796

Le Club

 

Glendale Racquet Club, Inc.

 

2001 W. Good Hope Road

 

Milwaukee

 

WI

 

53209

Lochmere Golf Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

2511 Kildaire Farm Road

 

Cary

 

NC

 

27511

Lost Creek Country Club

 

Hill Country Golf, Inc.

 

2612 Lost Creek Boulevard

 

Austin

 

TX

 

78746-7150

Marina Vallarta Club de Golf

 

Club de Golf Financiero, S.A. de C.V.

 

Fraccionamiento Marina Vallart

KM 7.5, Carretera Aeropuerto

 

Puerto Vallarta

 

Jalisco

 

Mexcio

Monarch Country Club

 

ClubCorp Golf of California, L.L.C.

 

1801 SW Monarch Club Drive

 

Palm City

 

FL

 

34990

Morgan Run Resort & Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

5690 Cancha de Golf

 

Rancho Sante Fe

 

CA

 

92091

Nags Head Golf Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

5615 South Seachase Drive

 

Nags Head

 

NC

 

27959

Neuse Golf Club

 

Northwood Management Corp.

 

918 Birkdale Drive

 

Clayton

 

NC

 

27527

Northwood Country Club

 

Oak Pointe Country Club, Inc.

 

3157 Club Drive

 

Lawrenceville

 

GA

 

30044-2524

Oak Pointe Country Club

 

Oakmont Management Corp.

 

4500 Club Drive

 

Brighton

 

MI

 

48116-9754

Oakmont Country Club

 

Piedmont Golfers’ Club LLC

 

1901 Oakmont Drive

 

Corinth

 

TX

 

76210

Piedmont Club

 

ClubCorp Porter Valley Country Club, Inc.

 

14675 Piedmont Vista Drive

 

Haymarket

 

VA

 

20169

Porter Valley Country Club

 

Quail Hollow Management, Inc.

 

19216 Singing Hills Drive

 

Northridge

 

CA

 

91326-1716

Quail Hollow Country Club

 

Queens Harbour Corporation

 

11295 Quail Hollow Drive

 

Concord

 

OH

 

44077-9036

Queens Harbour Country Club

 

AZ Club, LLC

 

1131 Queen’s Harbour Blvd.

 

Jacksonville

 

FL

 

32225

Seville Golf & Country Club

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

6683 S. Clubhouse Drive

 

Gilbert

 

AZ

 

85298

Shadowridge Golf Club

 

Shady Valley Management Corp.

 

1980 Gateway Drive

 

Vista

 

CA

 

92081-9031

Shady Valley Golf Club

 

Southern Trace Country Club of Shreveport, Inc.

 

4001 West Park Row Drive

 

Arlington

 

TX

 

76013-2940

Southern Trace Country Club

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

200 Southern Trace Parkway

 

Shreveport

 

LA

 

71106-9343

Spring Valley Lake Country Club

 

ClubCorp Golf of Texas, L.P.

 

13229 Spring Valley Pkwy. / SVL Box 7070

 

Victorville

 

CA

 

92395

Stonebriar Country Club

 

Tampa Palms Club, Inc.

 

5050 Country Club Drive

 

Frisco

 

TX

 

75034

Stonebridge Ranch Country Club

 

Fort Bend Acquisition Corp.

 

7003 Beacon Hill

 

McKinney

 

TX

 

75070

Tampa Palms Golf & Country Club

 

Kingwood Country Club, Inc.

 

5811 Tampa Palms Boulevard

 

Tampa

 

FL

 

33647

The Club at Falcon Point

 

Indigo Run Asset Corp.

 

24503 Falcon Point Drive

 

Katy

 

TX

 

77494

The Clubs of Kingwood

 

ClubCorp Golf of Texas, L.P.

 

1700 Lake Kingwood Trail

 

Kingwood

 

TX

 

77339-3717

The Country Club of the South

 

Timarron Golf Club Inc.

 

4100 Old Alabama Road

 

Johns Creek

 

GA

 

30022

The Golf Club at Indigo Run

 

Treesdale Country Club, Inc.

 

101 Berwick Drive

 

Hilton Head Island

 

SC

 

29926

The Hills at Lakeway

 

ClubCorp Golf of Texas, L.P.

 

26 Club Estates Parkway

 

Austin

 

TX

 

78738-1428

Timarron Country Club

 

ClubCorp Golf of California, L.L.C.

 

1400 Byron Nelson Parkway

 

Southlake

 

TX

 

76092-9612

Treesdale Golf & Country

 

ClubCorp Golf of North

 

One Arnold Palmer Drive

 

Gibsonia

 

PA

 

15044

 


 

Club Name

 

Owner/Tenant/Manager

 

Address

 

City

 

State

 

Zip

Club

 

Carolina, L.L.C.

 

 

 

 

 

 

 

 

Trophy Club Country Club

 

ClubCorp Golf of North Carolina, L.L.C.

 

500 Trophy Club Drive

 

Trophy Club

 

TX

 

76262

Vista Vallarta

 

La Vista Club de Golf, S.A. de C.V.

 

Circuito Universidad 653

Col. San Nicholas C.P. 48390

 

Puerto Vallarta

 

Jalisco

 

Mexico 48354

Walnut Creek Country Club

 

Walnut Creek Management Corporation

 

1151 Country Club Drive

 

Mansfield

 

TX

 

76063-2512

Wildflower Country Club

 

Wildflower Country Club, Inc.

 

4902 Wildflower Lane

 

Temple

 

TX

 

76502-4804

Woodside Plantation Country Club

 

Woodside Plantation Country Club, Inc.

 

1000 Woodside Plantation Drive

 

Aiken

 

SC

 

29803-7801

LEASED

Airways Municipal Golf Course

 

ClubCorp Airways Golf, Inc.

 

5440 E. Shields

 

Fresno

 

CA

 

93727-7793

Bluegrass Yacht & Country Club

 

Bluegrass Club, LLC

 

550 Johnny Cash Parkway

 

Hendersonville

 

TN

 

37075

Empire Ranch Golf Club

 

Empire Ranch, LLC

 

1620 East Natoma

 

Folsom

 

CA

 

95630

Indian Wells Country Club

 

ClubCorp IW Golf Club, Inc.

 

46-000 Club Drive

 

Indian Wells

 

CA

 

92210

Ipswich Country Club

 

New England Country Club Management, Inc.

 

148 Country Club Way

 

Ipswich

 

MA

 

01938

Mission Hills Country Club

 

ClubCorp Mission Hills Country Club, Inc.

 

34-600 Mission Hills Drive

 

Rancho Mirage

 

CA

 

92270

River Creek Country Club

 

River Creek Country Club, Inc.

 

43800 Olympic Blvd.

 

Leesburg

 

VA

 

20176

Silver Lake Country Club

 

Silver Lake Management Corp.

 

1325 Graham Road

 

Silver Lake

 

OH

 

44224-2999

Stonehenge Golf & Country Club

 

Stonehenge Club, Inc.

 

1000 Farnham Drive

 

Richmond

 

VA

 

23236

Teal Bend Golf Club

 

ClubCorp Teal Bend Golf Club, Inc.

 

7200 Garden Hwy

 

Sacramento

 

CA

 

95837

The Currituck Club

 

Currituck Golf, LLC

 

620 Currituck Clubhouse Drive

 

Corolla

 

NC

 

27927

Turkey Creek Golf Club

 

ClubCorp Turkey Creek Golf Club, Inc.

 

1525 Hwy 193

 

Lincoln

 

CA

 

95648

Willow Creek Golf Club

 

Willow Creek Management, Inc.

 

24525 Northcrest

 

Spring

 

TX

 

77389

Boston College Club

 

Club at Boston College, Inc.

 

100 Federal Street, 36th Floor

 

Boston

 

MA

 

02110

Buckhead Club

 

The Buckhead Club, Inc.

 

3344 Peachtree Road, NE

 

Atlanta

 

GA

 

30326-1022

Capital City Club

 

Capital City Club Corp.

 

201 Monroe St, RSA Tower, Ste 2100

 

Montgomery

 

AL

 

36104-3595

Capital City Club

 

Capital City Club of Raleigh, Inc.

 

Center Plaza Bldg., 411 Fayetteville

 

Raleigh

 

NC

 

27601-1740

Capital City Club

 

Columbia Capital City Club Corp.

 

1201 Main Street, Suite 2500

 

Columbia

 

SC

 

29201

Cardinal Club

 

Capital City Club of Raleigh, Inc.

 

150 Fayetteville Street Mall, Ste 2800

 

Raleigh

 

NC

 

27601

Center Club

 

ClubCorp Center Club, Inc.

 

Center Tower, 650 Town Center Drive, Suite 830

 

Costa Mesa

 

CA

 

92626

Centre Club

 

Centre Club, Inc.

 

123 South Westshore, 8th Floor

 

Tampa

 

FL

 

33609-2559

Citrus Club

 

Citrus Club, Inc.

 

1800 Citrus Center, 255 South Orange Avenue

 

Orlando

 

FL

 

32801-3481

City Club of Washington at Columbia Square

 

City Club of Washington, Inc.

 

555 13th Street, NW

 

Washington

 

DC

 

20004

City Club of Washington at Franklin Square

 

City Club of Washington, Inc.

 

1300 ‘I’ Street, NW

 

Washington

 

DC

 

20005

City Club on Bunker Hill

 

ClubCorp Bunker Hill Club, Inc.

 

333 S. Grand Avenue, Suite 5450

 

Los Angeles

 

CA

 

90071-1558

Club LeConte

 

Club Le Conte, Inc.

 

2700 Plaza Tower

 

Knoxville

 

TN

 

37929-2700

Columbia Tower Club

 

Columbia Tower Club, Inc.

 

701 Fifth Avenue, 75th Floor

 

Seattle

 

WA

 

98104

Commerce Club

 

The Commerce Club, Inc.

 

55 Beattie Place, 17th Floor, First Union Bank Bldg.

 

Greenville

 

SC

 

29601-2157

 


 

Club Name

 

Owner/Tenant/Manager

 

Address

 

City

 

State

 

Zip

Crescent Club

 

Memphis City Club, Inc.

 

6075 Poplar Avenue, Suite 909

 

Memphis

 

TN

 

38119-0109

Dayton Racquet Club

 

Dayton Racquet Club, Inc.

 

Kettering Tower, Suite 2900, 40 N. Main Street

 

Dayton

 

OH

 

45423

First City Club

 

First City Club Management, Inc.

 

32 Bull Street, 2nd Floor

 

Savannah

 

GA

 

31401-3342

Harbour Club

 

Harbour Club of Charleston, Inc.

 

35 Prioleau Street

 

Charleston

 

SC

 

29401

Houston City Club

 

Houston City Club, Inc.

 

One City Club Drive, 9 Greenway Plaza

 

Houston

 

TX

 

77046

La Cima Club

 

La Cima Club, Inc.

 

5215 North O’Connor Road, Suite 2600

 

Irving

 

TX

 

75039

Metropolitan Club

 

The Metropolitan Club of Chicago, Inc.

 

Sears Tower, 67th Floor, 233 South Wacker Drive

 

Chicago

 

IL

 

60606-6304

Mid-America Club

 

MAC Club, LLC

 

200 East Randolph Drive, 80th Floor

 

Chicago

 

IL

 

60601

Piedmont Club

 

Piedmont Club, Inc.

 

200 West Second St, 19th Floor

 

Winston-Salem

 

NC

 

27101-4018

Plaza Club

 

The Plaza Club of San Antonio, Inc.

 

100 West Houston Frost Bank Tower, 21st Flr

 

San Antonio

 

TX

 

78205-1489

Pyramid Club

 

Pyramid Club Management, Inc.

 

1735 Market Street, 52nd Floor

 

Philadelphia

 

PA

 

19103

Renaissance Club

 

Renaissance Club, Inc.

 

200 Renaissance Center, Suite 3600

 

Detroit

 

MI

 

48243

Resolution Fitness at 191

 

191 Athletic Club Management Company, LLC

 

One Ninety One Peachtree Tower, 191 Peachtree St. NE, Suite 300

 

Atlanta

 

GA

 

30303-1761

Rivers Club

 

Rivers Club, Inc.

 

One Oxford Centre, Suite 411, 301 Grant Street

 

Pittsburgh

 

PA

 

15219

Silicon Valley Capital Club

 

ClubCorp San Jose Club, Inc.

 

50 West San Fernando, Suite 1700

 

San Jose

 

CA

 

95113

Skyline Club

 

Skyline Club, Inc.

 

One American Square, 36th Floor

 

Indianapolis

 

IN

 

46204-1926

Skyline Club

 

Renaissance Club, Inc.

 

2000 Town Center, Suite 2800

 

Southfield

 

MI

 

48075

Texas Tech Club

 

ClubCorp TTC, LLC

 

2508 6th Street

 

Lubbock

 

TX

 

79409

The Athletic & Swim Club at Equitable Center

 

Athletic Club at the Equitable Center, Inc.

 

787 Seventh Avenue

 

New York

 

NY

 

10019

The Club at Key Center

 

The Club at Society Center, Inc.

 

127 Public Square

 

Cleveland

 

OH

 

44114

The Commerce Club (One Ninety One)

 

191 CC Operating Co., LLC

 

One Ninety One Peachtree Tower, 191 Peachtree St. NE, Suite 4900

 

Atlanta

 

GA

 

30303-1761

The Downtown Club at Houston Center

 

The Downtown Club, Inc.

 

1100 Caroline

 

Houston

 

TX

 

77002

The Downtown Club at Met

 

The Downtown Club, Inc.

 

One Allen Center, 340 West Dallas, 6th Floor

 

Houston

 

TX

 

77002

The Downtown Club at Plaza

 

The Downtown Club, Inc.

 

One Shell Plaza, 910 Louisiana, Suite 4900

 

Houston

 

TX

 

77002

The Summit Club

 

The Summit Club, Inc.

 

1901 Sixth Avenue North, Suite 3100

 

Birmingham

 

AL

 

35203-2618

The University of Texas Club

 

Memorial Stadium Club Management Corp.

 

2108 Robert Dedman Drive

 

Austin

 

TX

 

78712

Tower Club

 

Tower Club of Dallas, Inc.

 

Thanksgiving Tower, 48th Floor, 1601 Elm Street

 

Dallas

 

TX

 

75201

Tower Club

 

Tower Club, Inc.

 

100 SE 3rd Avenue, One Financial Plaza, 28th Floor

 

Fort Lauderdale

 

FL

 

33394-0029

Tower Club Tysons Corner

 

Tower City Club of Virginia, Inc.

 

Tyson Tower, Suite 1700, 8000 Towers Crescent Drive

 

Vienna

 

VA

 

22182-2700

Town Point Club

 

Town Point Club, Inc.

 

Wachovia Bank Bldg, 101 West Main Street, Suite 300

 

Norfolk

 

VA

 

23510-1622

University Club of Jacksonville

 

University Club, Inc.

 

1301 Riverplace Boulevard, Suite 2516, 27th Floor

 

Jacksonville

 

FL

 

32207-9085

University Club atop Symphony Towers

 

ClubCorp Symphony Towers Club, Inc.

 

750 ‘B’ Street, Suite 3400

 

San Diego

 

CA

 

92101

University Club of Jackson

 

The University Club, Inc.

 

AmSouth Bank Plaza, 22nd Floor, 210 East Capitol Street

 

Jackson

 

MS

 

39201-2372

WestLake Club

 

Westlake City Club, Inc.

 

570 Westlake Park Boulevard

 

Houston

 

TX

 

77079

 


 

Club Name

 

Owner/Tenant/Manager

 

Address

 

City

 

State

 

Zip

MANAGED

Carolina Club

 

UNC Alumni Club Management, Inc.

 

George Watts Hill Alumni Center, Stadium Dr at Ridge Rd, CB#9180

 

Chapel Hill

 

NC

 

27514

Nashville City Club

 

Nashville Club Management, Inc.

 

Sun Trust Bank Bldg, 20th Floor, 201 Fourth Avenue North

 

Nashville

 

TN

 

37219-2322

Eagle Ridge Golf Club

 

Management Company for Eagle Ridge and The Preserve

 

13605 Del Webb Boulevard

 

Summerfield

 

FL

 

34491

The Preserve Golf Club

 

Management Company for Eagle Ridge and The Preserve

 

13601 S. W. 115th Avenue

 

Dunellon

 

FL

 

34432

Shoreby Club

 

Shorbey Club Management, Inc.

 

40 Shoreby Drive

 

Bratenahl

 

OH

 

44108

Stone Creek Golf Club

 

ClubCorp Management Company for Stone Creek, LLC

 

9676 SW 62nd Loop

 

Ocala

 

FL

 

34481

University Center Club at Florida State University

 

University Club Management Co., Inc.

 

FSU Doak Campbell Stadium, University Center, Bldg B

 

Tallahassee

 

FL

 

32306-2568

University of Massachusetts Club

 

UMass Club Management, LLC

 

225 Franklin Street, 33rd Floor

 

Boston

 

MA

 

02110

The Club at Viniterra at New Kent Vinyards

 

Farms of New Kent Management, LLC

 

8400 Old Church Road

 

New Kent

 

VA

 

23124

 


 

Schedule 5.07(c)

 

UNRECORDED GROUND LEASES

 

Club Name

 

Address

 

City

 

State

 

Zip

Airways Municipal Golf Course

 

5440 E. Shields

 

Fresno

 

CA

 

93727-7793

Silver Lake Country Club

 

1325 Graham Road

 

Silver Lake

 

OH

 

44224-2999

 


 

Schedule 5.10(a)

 

ERISA PLANS

 

FOREIGN PLANS

 

None.

 

PENSION PLANS

 

The Homestead Retirement Plan.

 

MULTIEMPLOYER PLANS

 

A Restricted Subsidiary has obligation under that certain Union Agreement entered into as of February 1, 2009, by and between the Indian Wells Country Club and the Laborers’ International Union Of North America, Local Union 1184, affiliated with the Southern California District Council Of Laborers and the Laborers’ National International Union Of North America, AFL-CIO, to make contributions to the Industrial, Production, and Maintenance Health and Welfare Trust of California and to the Laborers’ National (Industrial) Pension Fund.

 


 

Schedule 5.10(c)

 

ERISA Events

 

In connection with the disposition of Borrower’s interests in The Homestead resort, a report may be required to be sent to the PBGC in the event the ERISA section 4062(e) regulations becomes final and effective on or prior to the Closing Date.

 

 

 

Schedule 5.11
Subsidiaries

 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

Aliso Community Center Management, Inc.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Aliso Viejo Commercial Property Joint Venture

 

a California partnership

 

ClubCorp GCL Corporation, Inc./Legav Commercial Property Corporation

 

50%/50%

Aliso Viejo Hotel Joint Venture

 

a California partnership

 

ClubCorp GCL Corporation, Inc./Legav Hotel Corporation/

 

50%/50%

Apple Mountain Golf Club, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Applecross Beverage Management, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Applecross Golf Club, LLC

 

a Pennsylvania limited liability company

 

ClubCorp USA, Inc.

 

100%

Bankers Club, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

BirchRiver Golf Management, Inc.

 

a Georgia corporation

 

ClubCorp USA, Inc.

 

100%

Birchriver Golf, L.P.

 

a Georgia limited partnership

 

BR GP, Inc.

 

71.44%

Bloody Point Asset Corp.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

BR GP, Inc.

 

a Georgia corporation

 

ClubCorp USA, Inc.

 

100%

Broken Arrow Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

Cape Cod Resort Management, LLC

 

a Massachusetts limited liability company

 

ClubCorp USA, Inc.

 

100%

Carillon Beach Management, LLC

 

a Florida limited liability company

 

ClubCorp USA, Inc.

 

100%

Chardonnay Golf Management Corp.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Club Consulting Netherlands, B.V.

 

a foreign corporation

 

ClubCorp International, Inc.

 

100%

Club Corporation of America (Singapore) PTE Ltd.

 

a foreign corporation

 

ClubCorp - Asia

 

100%

Club Corporation of America Limited (Hong Kong)

 

a foreign corporation

 

ClubCorp - Asia

 

100%

Club Corporation of America Limited (Thailand)

 

a foreign corporation

 

ClubCorp - Asia

 

100%

Club Corporation of America South Africa Pty Ltd.

 

a foreign corporation

 

ClubCorp International, Inc.

 

100%

Club Island Realty Corp.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp - Asia

 

a Nevada corporation

 

ClubCorp International, Inc.

 

100%

ClubCorp Global Consulting, Inc.

 

a Delaware corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp Global Holdings, Inc.

 

a Delaware corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp Hamlet, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

ClubCorp International Resource Company

 

a Nevada corporation

 

ClubCorp International, Inc.

 

100%

ClubCorp of America Ltd. (Mauritius)

 

a foreign corporation

 

ClubCorp International, Inc.

 

100%

ClubCorp Philippine Holdings, Inc.

 

a Delaware corporation

 

ClubCorp Global Holdings, Inc.

 

100%

ClubCorp Realty Barton Creek, Inc.

 

a Texas corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp Realty Hilton Head, Inc.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp Realty Homestead, Inc.

 

a Virginia corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp South Africa Investment Holdings Pty Ltd.

 

a foreign corporation

 

ClubCorp International, Inc.

 

100%

ClubCorp U.K., Ltd.

 

a foreign corporation

 

ClubCorp International, Inc.

 

100%

ClubCorp USA GP, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

ClubCorp USA LP, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

ClubCorp Willow Creek, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

ClubCorp Wind Watch, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Construction Company of Pinehurst, Inc.

 

a North Carolina corporation

 

ClubCorp USA, Inc.

 

100%

Country Club of Pinewild Management, Inc.

 

a North Carolina corporation

 

ClubCorp USA, Inc.

 

100%

Daufuskie Club, Inc.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

DLGA Golf Academy, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

El Capitan Club Management Corp.

 

a Delaware corporation

 

ClubCorp USA, Inc.

 

100%

ELW Golf Group, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

ELW Water Acquisition, L.L.C.

 

a Florida limited liability company

 

ClubCorp USA, Inc.

 

100%

Errol Estate Management, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

Errol Land Development Company

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

Exchange Club Management, Inc.

 

an Illinois corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Fairlane Manor, Inc.

 

a Michigan corporation

 

CCA Mezzanine Holdco, LLC

 

100%

FCS Corp.

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

Financial Casualty & Surety, Ltd.

 

a Bermuda corporation

 

ClubCorp USA, Inc.

 

100%

First Federal Financial Corp.

 

a Texas corporation

 

ClubCorp USA, Inc.

 

100%

Florida Golf Club of Gainesville, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

GFO Partner, Inc

 

a Michigan corporation

 

ClubCorp USA, Inc.

 

100%

Hilton Head Plantation Asset Corp.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

Homestead Spring Water Company, Inc.

 

a Virginia corporation

 

ClubCorp USA, Inc.

 

100%

LaCita Management Corp.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

Le Glub, Inc.

 

a Wisconsin corporation

 

Glendale Racquet Club, Inc.

 

100%

Legav Commercial Property Corporation

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Legav Hotel Corporation

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Los Lagos Country Club, Inc.

 

an Arizona corporation

 

ClubCorp USA, Inc.

 

100%

Management Co. for the Hartford Club, Inc.

 

a Connecticut corporation

 

ClubCorp USA, Inc.

 

100%

Management Company for Hammock Creek, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

Management Company for Stoneridge Club, Inc.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Melrose Asset Corp.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

Melrose Landing Corporation

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

Middletown Golf, Inc.

 

a Pennsylvania corporation

 

ClubCorp USA, Inc.

 

100%

Mont-Sainte-Anne Realty Corp.

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

Mont-Sainte-Anne Resort Corp.

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

Northern Michigan Financial Corporation

 

a Michigan corporation

 

ClubCorp USA, Inc.

 

100%

NV Club, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Ocean Vista Land Acquisition, L.L.C.

 

a Delaware limited liability company

 

Ocean Vista Land Company Stock Purchase Corp.

 

100%

Ocean Vista Land Company

 

a California corporation

 

Ocean Vista Land Company Stock Purchase Corp.

 

100%

Ocean Vista Land Company Stock Purchase Corp.

 

a Delaware corporation

 

ClubCorp USA, Inc.

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

Oceanside Golf Management Corp.

 

a California corporation

 

Ocean Vista Land Company Stock Purchase Corp.

 

100%

OK Abilene Club Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Akron Club Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Arlington City Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Atlanta City Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Atrium Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Beckett Ridge Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Bentwood Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK CCC Holding, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK CCT, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Century I Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Century II Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Cipango Management Corporation

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK City Club of Rockford, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK City Club of San Antonio Management, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Clayton Club Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Club Metropolitan of Austin, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Colonnade Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Country Club at RiverPlace, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Desert Oasis Golf Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK DTC Management Corporation

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Dumfries Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Forest Oaks Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Heritage Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Jefferson Club Management Corporation

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Lake Country Estates Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Lakes Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Lakeview Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Landmark Club at Park Central, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Los Gatos Tennis, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Marina Club Management, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK MCC Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Metropolitan Club Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Monroe Street City Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Mountainside Club Corporation

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Mountaintop Club Management, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK North Hills Management Co.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Northshore Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Oak Meadow Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pharaohs Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pinewood Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pinnacle Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

OK Plaza Athletic Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Plaza Club - Tyler, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Plaza Club Hawaii, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Plaza Club of Bryan, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Plaza Club of Tucson, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 01-01-2002 Operator of Quail Valley World of Clubs, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 06-15-04 Operator of The Ravinia Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 09-22-04 Operator of Jefferson Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 10-13-00 Operator of Willowbend Development Corporation of Wichita

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 11-28-00 Operator of the Skyline Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 12-15-04 Operator of Capital Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 12-23-99 Owner Lafayette Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 12-30-98 Operator of Halifax Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 12-31-04 Operator of Tower Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 12-31-1997 Operator of Midland Plaza Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 1986 Operator of Treasure Island Tennis & Yacht Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 2.1.09 Owner/Operator of San Francisco Tennis Club

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 2-1-95 Operator Company of Landmark Athletic Club

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 2-28-01 Operator of The Meadow Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 3-16-01 Operator of Belle Terre Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 5-18-01 Operator of Orange Park Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 5-3-00 Operator of The Walden Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 5-31-01 Operator of Inverrary Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 6-1-96 Operator of The Manager for Tower Ridge Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 7-4-96 Operator of Rodney Square Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 8-24-00 Operator of Pebble Creek Country Club of Greenville, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Pre 9/23/07 Owner/Operator of Capital Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Regency Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK River North Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK RMPC Management Corporation

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Rolling Hills Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Royal Drive Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK San Angelo Heritage Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

OK Shenandoah Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Snee Farm Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Standard Club Management, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Summit Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Sweetwater Country Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK The Capital Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK The Lakes Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK The Plaza Club of Phoenix, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK The Relay House Corporation

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Top Seed Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Tops’l Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Two Thousand One Bryan Tower Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK University Club of Dallas, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK University Club of Houston, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK University Club of West Palm Beach, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

OK Vita Center Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

Owners Club Telluride Realty, Inc.

 

a Colorado corporation

 

ClubCorp USA, Inc.

 

100%

Panama City Club Holdings S.A.

 

a foreign corporation

 

ClubCorp Global Holdings, Inc.

 

100%

Panama City Club Management, S.A.

 

 

 

ClubCorp Global Holdings, Inc.

 

100%

Paradise Valley Management, Inc.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Pasadera CC Management Corp.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Pinewild Management, Inc.

 

a Virginia corporation

 

ClubCorp USA, Inc.

 

100%

Plantation Services Inc.

 

a Texas corporation

 

ClubCorp USA, Inc.

 

100%

Pre 01-07-00 Operator of Diamond Bar Management Corp.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Pre 01-17-03 Operator of The Presidential Country Club, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

Pre 10-04-02 Operator of Des Moines Club Management, Inc.

 

an Iowa corporation

 

ClubCorp USA, Inc.

 

100%

Pre 10-04-02 Tenant of Des Moines Club Tenant Corp.

 

an Iowa corporation

 

ClubCorp USA, Inc.

 

100%

Pre 12-21-05 Operator of The Greens Golf & Racquet Club, Inc.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

Pre 4-10-2003 Operator of Club at Glen Oaks, Inc.

 

an Iowa corporation

 

ClubCorp USA, Inc.

 

100%

Premier Athletic Club, Inc.

 

a Louisiana corporation

 

ClubCorp USA, Inc.

 

100%

Prince William Club Management, LLC

 

a Virginia limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

Raintree Counry Club, Inc.

 

a North Carolina corporation

 

ClubCorp USA, Inc.

 

100%

Renaissance Club, Inc.

 

an Arizona corporation

 

ClubCorp USA, Inc.

 

100%

Sabal Trace Corp.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

San Jose Renaissance Club, Inc.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Saticoy Management, Inc.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Shangri-La Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

Sixty-Six Group Limited Partnership

 

a South Carolina limited partnership

 

Bloody Point Asset Corp.

 

55.13%

Surrey Hills Management Corp.

 

an Oklahoma corporation

 

ClubCorp USA, Inc.

 

100%

Tampa Club Management, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

Tescercom, S.A. (Ecuador)

 

Foreign corporation

 

ClubCorp Philippine Holdings, Inc.

 

100%

 

 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

The 410 Club Management Corp.

 

an Illinois corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The City Club of San Francisco, Inc.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

The Club at Canyon Gate, Inc.

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

The Lancers Club, Inc.

 

a Texas corporation

 

ClubCorp USA, Inc.

 

100%

The Manager for Indigo Run, Inc.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

The Manager for Westwood Country Club, Inc.

 

a Texas corporation

 

ClubCorp USA, Inc.

 

100%

The River Club, Inc.

 

an Illinois corporation

 

ClubCorp USA, Inc.

 

100%

Twelve Bridges Management Company

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Twelve Oaks Club Management, LLC

 

 

a North Carolina limited liability company

 

ClubCorp USA, Inc.

 

100%

UMASS Club Management, Inc.

 

a Massachusetts corporation

 

ClubCorp USA, Inc.

 

100%

Virginia Hot Springs Golf and Tennis Club, Incorporated

 

a Virginia corporation

 

ClubCorp USA, Inc.

 

100%

Barton Creek Resort & Clubs, Inc.

 

a Texas corporation

 

ClubCorp Mortgage Borrower, LLC

 

100%

Barton Creek Resort, LLC

 

a Delaware limited liability company

 

Barton Creek Resort & Clubs, Inc.

 

100%

CCA Golf Course Holdco, LLC

 

a Delaware limited liability company

 

ClubCorp Mortgage Borrower, LLC

 

100%

CCA Mezzanine Holdco, LLC

 

a Delaware limited liability company

 

ClubCorp Mezzanine Borrower, LLC

 

100%

CCG Club de Golf, S.A. de C.V.

 

a foreign corporation, Mexico

 

ClubCorp International, Inc./ClubCorp Mexico, Inc.

 

.72%/99.28%

CG Desarrolladora, S.A. de C.V.

 

a foreign corporation, Mexico

 

ClubCorp International, Inc./CG Inversiones S.A. de C.V.

 

1%/99%

CG Inversiones S.A. de C.V.

 

a foreign corporation, Mexico

 

ClubCorp Mexico, Inc./ClubCorp International, Inc.

 

98.8%/1.2%

ClubCorp Aven Holdings, Inc.

 

a Delaware corporation

 

ClubCorp Buying Services, Inc.

 

100%

ClubCorp Buying Services, Inc.

 

a Delaware corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp Financial Management Company

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp Graphics, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp International, Inc.

 

a Nevada corporation

 

ClubCorp, Inc.

 

100%

ClubCorp Latin America, S.A. de C.V.

 

a foreign corporation, Mexico

 

CG Inversiones, S.A. de C.V./ClubCorp USA, Inc.

 

80%/20%

ClubCorp Mexico, Inc.

 

a Nevada corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Mezzanine Borrower, LLC

 

a Delaware limited liabilty company

 

ClubCorp USA, Inc.

 

100%

ClubCorp Mortgage Borrower, LLC

 

a Delaware limited liability company

 

ClubCorp Mezzanine Borrower, LLC

 

100%

ClubCorp Publications, Inc.

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

ClubCorp USA, Inc.

 

a Delaware corporation

 

ClubCorp, Inc.

 

100%

ClubCorp, Inc.

 

a Delaware corporation

 

Fillmore CCA Holdings, Inc.

 

100%

FFFC Golf Acquisitions, L.L.C.

 

a Delaware limited liabilty company

 

CCA Golf Course Holdco, LLC

 

100%

Fillmore CCA Holdings, Inc

 

a Delaware corporation

 

Fillmore CCA Holdings I, LLC

 

100%

HPG, L.C.

 

a Florida limited liability company

 

Haile Plantation Management Corp.

 

100%

Master Club, Inc.

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

MH Villas, Inc.

 

a California corporation

 

ClubCorp USA, Inc.

 

100%

Monarch EP Management Corp.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

Operations Company for Homestead, Inc.

 

a Virginia corporation

 

ClubCorp Mortgage Borrower, LLC

 

100%

Owners Club Asset Company

 

a Delaware corporation

 

ClubCorp USA, Inc.

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

The Owner’s Club of South Carolina, L.L.C.

 

a Delaware limited liability company

 

The Owner’s Club, Inc./Owners Club Asset Company

 

50.5%/49.5%

Promociones Turisticas Professionales, S.A. de C.V.

 

a foreign corporation, Mexico

 

ClubCorp International, Inc./ClubCorp Mexico, Inc.

 

1%/99%

Society Management, Inc.

 

a Nevada corporation

 

ClubCorp USA, Inc.

 

100%

The Manager of the Owner’s Club, Inc.

 

a South Carolina corporation

 

ClubCorp USA, Inc.

 

100%

The Owner’s Club, Inc.

 

a Delaware corporation

 

ClubCorp USA, Inc.

 

100%

The Owner’s Club at Hilton Head, L.P.

 

a South Carolina limited partnership

 

The Manager of the Owner’s Club, Inc./The Owner’s Club of South Carolina, L.L.C.

 

1%/99%

ClubCorp Asia Investments Inc.

 

a Nevada corporation

 

ClubCorp - Asia

 

100%

191 Athletic Club Management Company, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

191 CC Operating Co., LLC

 

a Delaware limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

Athletic Club at the Equitable Center, Inc.

 

a New York corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Capital City Club of Montgomery, Inc.

 

an Alabama corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Capital City Club of Raleigh, Inc.

 

a North Carolina corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Centre Club, Inc.

 

a Florida corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Citrus Club, Inc.

 

a Florida corporation

 

CCA Mezzanine Holdco, LLC

 

100%

City Club of Washington, Inc.

 

a Washington, D.C. corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Club at Boston College, Inc.

 

a Massachusetts corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Club Le Conte, Inc.

 

a Tennessee corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Bunker Hill Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Center Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp San Jose Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Symphony Towers Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp TTC, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Columbia Capital City Club Corp.

 

a South Carolina corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Columbia Tower Club, Inc.

 

a Washington corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Dallas Tower Club, Inc.

 

a Texas corporation

 

Tower Club of Dallas, Inc.

 

100%

Dayton Racquet Club, Inc.

 

an Ohio corporation

 

CCA Mezzanine Holdco, LLC

 

100%

First City Club Management, Inc.

 

a Georgia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Glendale Management Corp.

 

a Wisconsin corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Glendale Racquet Club, Inc.

 

a Wisconsin corporation

 

Glendale Management Corp.

 

100%

Greenspoint Club, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Harbour Club of Charleston, Inc.

 

a South Carolina corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Houston City Club, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

La Cima Club, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

MAC Club, LLC

 

a Delaware limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

Memorial Stadium Club Management Corp.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Memphis City Club, Inc.

 

a Tennessee corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Nashville Club Management, Inc.

 

a Tennessee corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Piedmont Club, Inc.

 

a North Carolina corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Pyramid Club Management, Inc.

 

a Pennsylvania corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Renaissance Club, Inc.

 

a Michigan corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Rivers Club, Inc.

 

a Pennsylvania corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Shoreby Club Management, Inc.

 

an Ohio corporation

 

CCA Mezzanine Holdco, LLC

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

Skyline Club, Inc.

 

an Indiana corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The 191 Club, Inc.

 

a Georgia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The Buckhead Club, Inc.

 

a Georgia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The Club at Society Center, Inc.

 

an Ohio corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The Commerce Club, Inc.

 

a South Carolina corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The Downtown Club, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The Metropolitan Club of Chicago, Inc.

 

an Illinois corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The Plaza Club of San Antonio, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The Summit Club, Inc.

 

an Alabama corporation

 

CCA Mezzanine Holdco, LLC

 

100%

The University Club, Inc.

 

a Mississippi corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Tower City Club of Virginia, Inc.

 

a Virginia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Tower Club of Dallas, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Tower Club, Inc.

 

a Florida corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Town Point Club, Inc.

 

a Virginia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

UMass Club Management, LLC

 

a Delaware limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

UNC Alumni Club Management, Inc.

 

a North Carolina corporation

 

CCA Mezzanine Holdco, LLC

 

100%

University Club Management Co., Inc.

 

a Florida corporation

 

CCA Mezzanine Holdco, LLC

 

100%

University Club, Inc.

 

a Florida corporation

 

CCA Mezzanine Holdco, LLC

 

100%

West Park Club, Inc.

 

a Texas corporation

 

Westlake City Club, Inc.

 

100%

Westlake City Club, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Akron Management Corp.

 

an Ohio corporation

 

CCA Golf Course Holdco, LLC

 

100%

Aliso Viejo Golf Club Joint Venture

 

a California general partnership

 

ClubCorp GCL Corporation, Inc./ClubCorp Aliso Viejo Holding Corp.

 

50%/50%

Anthem Golf, LLC

 

an Arizona limited liability company

 

CCA Golf Course Holdco, LLC

 

100%

April Sound Management Corp.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Aspen Glen Golf Club Management Company

 

a Colorado corporation

 

CCA Mezzanine Holdco, LLC

 

100%

AZ Club, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Bay Oaks Country Club, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Bear’s Best Atlanta, L.P.

 

a Georgia limited partnership

 

GP Bear’s Best Atlanta, Inc.

 

75.80%

Bear’s Best Las Vegas, Limited Partnership

 

a Nevada corporation

 

GP Bear’s Best Las Vegas, Inc.

 

78.20%

Bluegrass Club, LLC

 

a Tennessee limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

Brookhaven Country Club, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Canyon Gate at Las Vegas, Inc.

 

a Nevada corporation

 

CCA Golf Course Holdco, LLC

 

100%

CCS, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Club de Golf Financiero, S.A. de C.V.

 

a foreign corporation, Mexico

 

ClubCorp Latin America, S.A. de C.V./ClubCorp International, Inc.

 

99.99%/.01%

ClubCorp Airways Golf, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Aliso Viejo Holding Corp.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Braemar Country Club, Inc.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp Canyon Crest Country Club, Inc.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp Coto Property Holdings, Inc.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp Crow Canyon Management Corp.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

ClubCorp Desert Falls Country Club, Inc.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp GCL Corporation

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Gen Par of Texas, L.L.C.

 

a Delaware limited liability company

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp Golf of California, L.L.C.

 

a Delaware limited liabilty company

 

FFFC Golf Acquisitions, L.L.C.

 

100%

ClubCorp Golf of Florida, L.L.C.

 

a Delaware limited liability company

 

FFFC Golf Acquisitions, L.L.C.

 

100%

ClubCorp Golf of Georgia, L.P.

 

a Georgia limited partnership

 

CCA Golf Course Holdco, LLC/ClubCorp Gen Par of Texas, L.L.C.

 

99%/1%

ClubCorp Golf of North Carolina, L.L.C.

 

a Delaware limited liability company

 

FFFC Golf Acquisitions, L.L.C.

 

100%

ClubCorp Golf of Texas, L.P.

 

a Texas limited partnership

 

CCA Golf Course Holdco, LLC/ClubCorp Gen Par of Texas, L.L.C.

 

99%/1%

ClubCorp Granite Bay Management, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp IW Golf Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp LSprings, L.P.

 

a Georgia limited partnership

 

Laurel Springs Holdco, LLC

 

85%

ClubCorp Management Company for Stone Creek, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

ClubCorp Mission Hills Country Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Porter Valley Country Club, Inc.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp Shadow Ridge Golf Club, Inc.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp Spring Valley Lake Country Club, Inc.

 

a Delaware corporation

 

CCA Golf Course Holdco, LLC

 

100%

ClubCorp Teal Bend Golf Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

ClubCorp Turkey Creek Golf Club, Inc.

 

a Delaware corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Countryside Country Club, Inc.

 

a Florida  corporation

 

CCA Golf Course Holdco, LLC

 

100%

Currituck Golf, LLC

 

a Delaware limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

DeBary Management Corp.

 

a Florida corporation

 

CCA Golf Course Holdco, LLC

 

100%

Diamante’ Golf Club Management, Inc.

 

an Arkansas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Diamante’ Golf Club Partners, Inc.

 

an Arkansas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Diamond Run Club, Inc.

 

a Pennsylvania corporation

 

CCA Golf Course Holdco, LLC

 

100%

Empire Ranch, LLC

 

a Delaware limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

Fair Oaks Club Corp.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Farms of New Kent Management, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Fort Bend Acquisition Corp.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

GCC Asset Management, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

GP Bear’s Best Atlanta, Inc.

 

a Georgia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

GP Bear’s Best Las Vegas, Inc.

 

a Nevada corporation

 

CCA Mezzanine Holdco, LLC

 

100%

GRanch Golf Club, Inc.

 

an Arizona corporation

 

CCA Golf Course Holdco, LLC

 

100%

Granite Bay Golf Club, Inc.

 

a Delaware corporation

 

ClubCorp Granite Bay Management, Inc.

 

80%

Granite Bay Limited Partnership

 

a California limited partnership

 

ClubCorp Granite Bay Management, Inc.

 

79.20%

Greenbrier Country Club, Inc.

 

a Virginia corporation

 

CCA Golf Course Holdco, LLC

 

100%

Hackberry Creek Country Club, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

 


 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

Haile Plantation Management Corp.

 

a Florida corporation

 

CCA Golf Course Holdco, LLC

 

100%

Hearthstone Country Club, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Hill Country Golf, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Hills II of Lakeway, Inc.

 

a Texas corporation

 

ClubCorp USA, Inc.

 

100%

Hunter’s Green Acquisition Corp.

 

a Florida corporation

 

CCA Golf Course Holdco, LLC

 

100%

Indigo Run Asset Corp.

 

a South Carolina corporation

 

CCA Golf Course Holdco, LLC

 

100%

Irving Club Acquisition Corp.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Isla Maya Club de Golf S.A. de C.V.

 

a foreign corporation, Mexico

 

ClubCorp Latin America, S.A. de C.V./ClubCorp Mexico, Inc.

 

99.99%/.01%

Kingwood Country Club, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Knollwood Country Club, Inc.

 

an Indiana corporation

 

CCA Golf Course Holdco, LLC

 

100%

La Vista Club de Golf S.A. de C.V.

 

a foreign corporation, Mexico

 

CG Inversiones, S.A. de C.V./ClubCorp Latin America, S.A. de C.V.

 

99.99%/0.01%

Lakeway Clubs, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Laurel Springs Holdco, LLC

 

a Delaware limited liability company

 

CCA Mezzanine Holdco, LLC

 

100%

LionsGate Golf Club, Inc.

 

a Kansas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Management Company for Eagle Ridge and The Preserve

 

a Florida corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Manager for CCHH, Inc.

 

a South Carolina corporation

 

CCA Golf Course Holdco, LLC

 

100%

Monarch Country Club, Inc.

 

a Florida corporation

 

ClubCorp USA, Inc.

 

100%

New England Country Club Management, Inc.

 

a Massachusetts corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Nicklaus Golf Club, L.P. at LionsGate

 

a Kansas limited partnership

 

Lionsgate Golf Club, Inc.

 

73.50%

Northwood Management Corp.

 

a Georgia corporation

 

CCA Golf Course Holdco, LLC

 

100%

Oak Pointe Country Club, Inc.

 

a Michigan corporation

 

CCA Golf Course Holdco, LLC

 

100%

Oakmont Management Corp.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Piedmont Golfers’ Club LLC

 

a South Carolina limited liability company

 

FFFC Golf Acquisitions, L.L.C.

 

100%

Quail Hollow Management, Inc.

 

an Ohio corporation

 

CCA Golf Course Holdco, LLC

 

100%

Queens Harbour Corporation

 

a Florida corporation

 

CCA Golf Course Holdco, LLC

 

100%

Richardson Country Club Corp.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

River Creek Country Club, Inc.

 

a Virginia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Shady Valley Management Corp.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Silver Lake Management Corp.

 

an Ohio corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Southern Trace Country Club of Shreveport, Inc.

 

a Louisiana corporation

 

CCA Golf Course Holdco, LLC

 

100%

Stonebriar Club, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Stonebriar Country Club Joint Venture

 

a Texas general partnership

 

Stonebriar Club, Inc./Stonebriar Management Holdings, LLC

 

50%/50%

Stonebriar Management Corp.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Stonebriar Management Holdings, LLC

 

a Delaware limited liability company

 

ClubCorp USA, Inc.

 

100%

Stonehenge Club, Inc.

 

a Virginia corporation

 

CCA Mezzanine Holdco, LLC

 

100%

Tampa Palms Club, Inc.

 

a Florida corporation

 

CCA Golf Course Holdco, LLC

 

100%

The Club at Cimarron, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Timarron Golf Club, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Treesdale Country Club, Inc.

 

a Pennsylvania corporation

 

CCA Golf Course Holdco, LLC

 

100%

Walnut Creek Management Corporation

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Wildflower Country Club, Inc.

 

a Texas corporation

 

CCA Golf Course Holdco, LLC

 

100%

Willow Creek Management, Inc.

 

a Texas corporation

 

CCA Mezzanine Holdco, LLC

 

100%

 

 

ENTITY NAME

 

JURISDICTION

 

DIRECT PARENTS

 

OWNERSHIP %

Woodside Plantation Country Club, Inc.

 

a South Carolina corporation

 

CCA Golf Course Holdco, LLC

 

100%

 


 

Schedule 6.17

 

Dormant Subsidiaries

 

ENTITY

 

JURISDICTION OF ORGANIZATION

Aliso Community Center Management, Inc.

 

a California corporation

Aliso Viejo Commercial Property Joint Venture

 

a California partnership

Aliso Viejo Hotel Joint Venture

 

a California partnership

Apple Mountain Golf Club, LLC

 

a Delaware limited liability company

Applecross Beverage Management, LLC

 

a Delaware limited liability company

Applecross Golf Club, LLC

 

a Pennsylvania limited liability company

Bankers Club, Inc.

 

a Florida corporation

BirchRiver Golf Management, Inc.

 

a Georgia corporation

Birchriver Golf, L.P.

 

a Georgia limited partnership

Bloody Point Asset Corp.

 

a South Carolina corporation

BR GP, Inc.

 

a Georgia corporation

Broken Arrow Management Corp.

 

an Oklahoma corporation

Cape Cod Resort Management, LLC

 

a Massachusetts limited liability company

Carillon Beach Management, LLC

 

a Florida limited liability company

Chardonnay Golf Management Corp.

 

a California corporation

Club Consulting Netherlands, B.V.

 

a foreign corporation

Club Corporation of America (Singapore) PTE Ltd.

 

a foreign corporation

Club Corporation of America Limited (Hong Kong)

 

a foreign corporation

Club Corporation of America Limited (Thailand)

 

a foreign corporation

Club Corporation of America South Africa Pty Ltd.

 

a foreign corporation

Club Island Realty Corp.

 

a South Carolina corporation

ClubCorp Global Consulting, Inc.

 

a Delaware corporation

ClubCorp Global Holdings, Inc.

 

a Delaware corporation

ClubCorp International Resource Company

 

a Nevada corporation

ClubCorp of America Ltd. (Mauritius)

 

a foreign corporation

ClubCorp Philippine Holdings, Inc.

 

a Delaware corporation

ClubCorp Realty Barton Creek, Inc.

 

a Texas corporation

ClubCorp Realty Hilton Head, Inc.

 

a South Carolina corporation

ClubCorp Realty Homestead, Inc.

 

a Virginia corporation

ClubCorp South Africa Investment Holdings Pty Ltd.

 

a foreign corporation

ClubCorp U.K., Ltd.

 

a foreign corporation

ClubCorp USA GP, LLC

 

a Delaware limited liability company

ClubCorp USA LP, LLC

 

a Delaware limited liability company

Construction Company of Pinehurest, Inc.

 

a North Carolina corporation

Country Club of Pinewild Management, Inc.

 

a North Carolina corporation

Daufuskie Club, Inc.

 

a South Carolina corporation

DLGA Golf Academy, Inc.

 

a Florida corporation

El Capitan Club Management Corp.

 

a Delaware corporation

ELW Golf Group, Inc.

 

a Florida corporation

ELW Water Acquisition, L.L.C.

 

a Florida limited liability company

Errol Estate Management, Inc.

 

a Florida corporation

Errol Land Development Company

 

a Florida corporation

 


 

ENTITY

 

JURISDICTION OF ORGANIZATION

Exchange Club Management, Inc.

 

an Illinois corporation

Fairlane Manor, Inc.

 

a Michigan corporation

FCS Corp.

 

a Nevada corporation

Financial Casualty & Surety, Ltd.

 

a Bermuda corporation

First Federal Financial Corp.

 

a Texas corporation

Florida Golf Club of Gainesville, Inc.

 

a Florida corporation

GFO Partner, Inc

 

a Michigan corporation

Hilton Head Plantation Asset Corp.

 

a South Carolina corporation

Homestead Spring Water Company, Inc.

 

a Virginia corporation

LaCita Management Corp.

 

a Florida corporation

Le Glub, Inc.

 

a Wisconsin corporation

Legav Commercial Property Corporation

 

a California corporation

Legav Hotel Corporation

 

a California corporation

Los Lagos Country Club, Inc.

 

an Arizona corporation

Management Co. for the Hartford Club, Inc.

 

a Connecticut corporation

Management Company for Hammock Creek, Inc.

 

a Florida corporation

Management Company for Stoneridge Club, Inc.

 

a California corporation

Melrose Asset Corp.

 

a South Carolina corporation

Melrose Landing Corporation

 

a South Carolina corporation

Middletown Golf, Inc.

 

a Pennsylvania corporation

Mont-Sainte-Anne Realty Corp.

 

a Nevada corporation

Mont-Sainte-Anne Resort Corp.

 

a Nevada corporation

Northern Michigan Financial Corporation

 

a Michigan corporation

NV Club, LLC

 

a Delaware limited liability company

Ocean Vista Land Acquisition, L.L.C.

 

a Delaware limited liability company

Ocean Vista Land Company

 

a California corporation

Ocean Vista Land Company Stock Purchase Corp.

 

a Delaware corporation

Oceanside Golf Management Corp.

 

a California corporation

OK Abilene Club Management Corp.

 

an Oklahoma corporation

OK Akron Club Management Corp.

 

an Oklahoma corporation

OK Arlington City Club, Inc.

 

an Oklahoma corporation

OK Atlanta City Club, Inc.

 

an Oklahoma corporation

OK Atrium Club, Inc.

 

an Oklahoma corporation

OK Beckett Ridge Country Club, Inc.

 

an Oklahoma corporation

OK Bentwood Management Corp.

 

an Oklahoma corporation

OK CCC Holding, Inc.

 

an Oklahoma corporation

OK CCT, Inc.

 

an Oklahoma corporation

OK Century I Management Corp.

 

an Oklahoma corporation

OK Century II Club, Inc.

 

an Oklahoma corporation

OK Cipango Management Corporation

 

an Oklahoma corporation

OK City Club of Rockford, Inc.

 

an Oklahoma corporation

OK City Club of San Antonio Management, Inc.

 

an Oklahoma corporation

OK Clayton Club Management Corp.

 

an Oklahoma corporation

OK Club Metropolitan of Austin, Inc.

 

an Oklahoma corporation

 


 

ENTITY

 

JURISDICTION OF ORGANIZATION

OK Colonnade Club, Inc.

 

an Oklahoma corporation

OK Country Club at RiverPlace, Inc.

 

an Oklahoma corporation

OK Desert Oasis Golf Management Corp.

 

an Oklahoma corporation

OK DTC Management Corporation

 

an Oklahoma corporation

OK Dumfries Club, Inc.

 

an Oklahoma corporation

OK Forest Oaks Country Club, Inc.

 

an Oklahoma corporation

OK Heritage Club, Inc.

 

an Oklahoma corporation

OK Jefferson Club Management Corporation

 

an Oklahoma corporation

OK Lake Country Estates Country Club, Inc.

 

an Oklahoma corporation

OK Lakes Club, Inc.

 

an Oklahoma corporation

OK Lakeview Club, Inc.

 

an Oklahoma corporation

OK Landmark Club at Park Central, Inc.

 

an Oklahoma corporation

OK Los Gatos Tennis, Inc.

 

an Oklahoma corporation

OK Marina Club Management, Inc.

 

an Oklahoma corporation

OK MCC Management Corp.

 

an Oklahoma corporation

OK Metropolitan Club Management Corp.

 

an Oklahoma corporation

OK Monroe Street City Club, Inc.

 

an Oklahoma corporation

OK Mountainside Club Corporation

 

an Oklahoma corporation

OK Mountaintop Club Management, Inc.

 

an Oklahoma corporation

OK North Hills Management Co.

 

an Oklahoma corporation

OK Northshore Management Corp.

 

an Oklahoma corporation

OK Oak Meadow Management Corp.

 

an Oklahoma corporation

OK Pharaohs Management Corp.

 

an Oklahoma corporation

OK Pinewood Management Corp.

 

an Oklahoma corporation

OK Pinnacle Club, Inc.

 

an Oklahoma corporation

OK Plaza Athletic Club, Inc.

 

an Oklahoma corporation

OK Plaza Club - Tyler, Inc.

 

an Oklahoma corporation

OK Plaza Club Hawaii, Inc.

 

an Oklahoma corporation

OK Plaza Club of Bryan, Inc.

 

an Oklahoma corporation

OK Plaza Club of Tucson, Inc.

 

an Oklahoma corporation

OK Pre 01-01-2002 Operator of Quail Valley World of Clubs, Inc.

 

an Oklahoma corporation

OK Pre 06-15-04 Operator of The Ravinia Club, Inc.

 

an Oklahoma corporation

OK Pre 09-22-04 Operator of Jefferson Club, Inc.

 

an Oklahoma corporation

OK Pre 10-13-00 Operator of Willowbend Development Corporation of Wichita

 

an Oklahoma corporation

OK Pre 11-28-00 Operator of the Skyline Club, Inc.

 

an Oklahoma corporation

OK Pre 12-15-04 Operator of Capital Club, Inc.

 

an Oklahoma corporation

OK Pre 12-23-99 Owner Lafayette Club, Inc.

 

an Oklahoma corporation

OK Pre 12-30-98 Operator of Halifax Club, Inc.

 

an Oklahoma corporation

OK Pre 12-31-04 Operator of Tower Club, Inc.

 

an Oklahoma corporation

OK Pre 12-31-1997 Operator of Midland Plaza Club, Inc.

 

an Oklahoma corporation

OK Pre 1986 Operator of Treasure Island Tennis & Yacht Club, Inc.

 

an Oklahoma corporation

OK Pre 2.1.09 Owner/Operator of San Francisco Tennis Club

 

an Oklahoma corporation

OK Pre 2-1-95 Operator Company of Landmark Athletic Club

 

an Oklahoma corporation

OK Pre 2-28-01 Operator of The Meadow Club, Inc.

 

an Oklahoma corporation

 


 

ENTITY

 

JURISDICTION OF ORGANIZATION

OK Pre 3-16-01 Operator of Belle Terre Management Corp.

 

an Oklahoma corporation

OK Pre 5-18-01 Operator of Orange Park Country Club, Inc.

 

an Oklahoma corporation

OK Pre 5-3-00 Operator of The Walden Club, Inc.

 

an Oklahoma corporation

OK Pre 5-31-01 Operator of Inverrary Country Club, Inc.

 

an Oklahoma corporation

OK Pre 6-1-96 Operator of The Manager for Tower Ridge Country Club, Inc.

 

an Oklahoma corporation

OK Pre 7-4-96 Operator of Rodney Square Club, Inc.

 

an Oklahoma corporation

OK Pre 8-24-00 Operator of Pebble Creek Country Club of Greenville, Inc.

 

an Oklahoma corporation

OK Pre 9/23/07 Owner/Operator of Capital Club, Inc.

 

an Oklahoma corporation

OK Regency Club, Inc.

 

an Oklahoma corporation

OK River North Management Corp.

 

an Oklahoma corporation

OK RMPC Management Corporation

 

an Oklahoma corporation

OK Rolling Hills Management Corp.

 

an Oklahoma corporation

OK Royal Drive Country Club, Inc.

 

an Oklahoma corporation

OK San Angelo Heritage Club, Inc.

 

an Oklahoma corporation

OK Shenandoah Management Corp.

 

an Oklahoma corporation

OK Snee Farm Country Club, Inc.

 

an Oklahoma corporation

OK Standard Club Management, Inc.

 

an Oklahoma corporation

OK Summit Club, Inc.

 

an Oklahoma corporation

OK Sweetwater Country Club, Inc.

 

an Oklahoma corporation

OK The Capital Club, Inc.

 

an Oklahoma corporation

OK The Lakes Club, Inc.

 

an Oklahoma corporation

OK The Plaza Club of Phoenix, Inc.

 

an Oklahoma corporation

OK The Relay House Corporation

 

an Oklahoma corporation

OK Top Seed Management Corp.

 

an Oklahoma corporation

OK Tops’l Club, Inc.

 

an Oklahoma corporation

OK Two Thousand One Bryan Tower Club, Inc.

 

an Oklahoma corporation

OK University Club of Dallas, Inc.

 

an Oklahoma corporation

OK University Club of Houston, Inc.

 

an Oklahoma corporation

OK University Club of West Palm Beach, Inc.

 

an Oklahoma corporation

OK Vita Center Management Corp.

 

an Oklahoma corporation

Owners Club Telluride Realty, Inc.

 

a Colorado corporation

Panama City Club Holdings S.A.

 

a foreign corporation

Panama City Club Management, S.A.

 

a foreign corporation

Paradise Valley Management, Inc.

 

a California corporation

Pasadera CC Management Corp.

 

a California corporation

Pinewild Management, Inc.

 

a Virginia corporation

Plantation Services Inc.

 

a Texas corporation

Pre 01-07-00 Operator of Diamond Bar Management Corp.

 

a California corporation

Pre 01-17-03 Operator of The Presidential Country Club, Inc.

 

a Florida Corporation

Pre 10-04-02 Operator of Des Moines Club Management, Inc.

 

an Iowa corporation

Pre 10-04-02 Tenant of Des Moines Club Tenant Corp.

 

an Iowa corporation

Pre 12-21-05 Operator of The Greens Golf & Racquet Club, Inc.

 

an Oklahoma corporation

Pre 4-10-2003 Operator of Club at Glen Oaks, Inc.

 

an Iowa corporation

Premier Athletic Club, Inc.

 

a Louisiana corporation

 


 

ENTITY

 

JURISDICTION OF ORGANIZATION

Prince William Club Management, LLC

 

a Virginia limited liability company

Raintree Counry Club, Inc.

 

a North Carolina corporation

Renaissance Club, Inc.

 

an Arizona corporation

Republic Plaza City Club (Singapore)

 

a foreign corporation

Sabal Trace Corp.

 

a Florida corporation

San Jose Renaissance Club, Inc.

 

a California corporation

Saticoy Management, Inc.

 

a California corporation

Shangri-La Management Corp.

 

an Oklahoma corporation

Sixty-Six Group Limited Partnership

 

a South Carolina limited partnership

Surrey Hills Management Corp.

 

an Oklahoma corporation

Tampa Club Management, Inc.

 

a Florida corporation

Tescercom, S.A. (Ecuador)

 

a foreign corporation

The 410 Club Management Corp.

 

an Illinois corporation

The City Club of San Francisco, Inc.

 

a California corporation

The Club at Canyon Gate, Inc.

 

a Nevada corporation

The Lancers Club, Inc.

 

a Texas corporation

The Manager for Indigo Run, Inc.

 

a South Carolina corporation

The Manager for Westwood Country Club, Inc.

 

a Texas corporation

The River Club, Inc.

 

an Illinois corporation

Twelve Bridges Management Company

 

a California corporation

Twelve Oaks Club Management, LLC

 

a North Carolina limited liability company

UMASS Club Management, Inc.

 

a Massachusetts corporation

Virginia Hot Springs Golf and Tennis Club, Incorporated

 

a Virginia corporation

 

 

SCHEDULE 6.18

 

POST CLOSING MATTERS

 

Holdings and the Borrower (on behalf of itself and each of its Restricted Subsidiaries) hereby covenant and agree to do the following:

 

1. As soon as reasonably practicable, but in any case, no later than 30 days after the Closing Date (as such date may be extended in the sole discretion of the Administrative Agent), they shall (i) cause Anthem Golf, LLC (“Anthem”) to obtain and promptly record in the appropriate recorder’s office, a corrective deed correcting the boundary line of “Parcel 21” of the Material Real Property owned by Anthem, (ii) amend the applicable Mortgage such that the updated boundary line is represented within the legal description attached to such Mortgage, (iii) cause an updated policy to be issued for title insurance such that the insured property includes the revised boundary line and (iv) execute any documents necessary to effectuate the foregoing, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

 

2. As soon as reasonably practicable, but in any case, no later than 10 Business Days after the Closing Date (as such date may be extended in the sole discretion of the Administrative Agent), they shall cause the title company to issue zoning endorsements to the loan policies reasonably acceptable to the Administrative Agent.

 

3. As soon as reasonably practicable, but in any case, no later than 10 Business Days after the Closing Date (as such date may be extended in the sole discretion of the Administrative Agent), for each club listed on Table 1 of this Schedule 6.18, they shall cause each entity listed in the “Club Entity” column to enter into a management or concession agreement (as applicable) with the corresponding entity listed in the “Liquor License Holder” column, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

 

Table 1

 

Name of Club

 

Club Entity

 

Liquor License Holder

Currituck Club

 

Currituck Golf, LLC

 

ClubCorp Golf of North Carolina, L.L.C.

Le Club

 

Glendale Racquet Club, Inc.

 

Glendale Management Corp.

Rivers Club

 

Rivers Club, Inc.

 

Rivers Club

Tower Club — Dallas

 

Tower Club of Dallas, Inc.

 

Dallas Tower Club, Inc.

Westlake Club

 

Westlake City Club, Inc.

 

West Park Club, Inc.

Woodside Plantation Country Club

 

Woodside Plantation Country Club, Inc.

 

The Club at Woodside Plantation

 

4.  As soon as reasonably practicable, but in any case, no later than 30 days after the Closing Date (as such date may be extended in the sole discretion of the Administrative Agent), they shall (i) cause ClubCorp Symphony Towers, Inc. to obtain and deliver to the Administrative Agent a Deposit Account Control Agreement with respect to Wells Fargo,

 


 

N.A. account number #########, (ii) cause ClubCorp Mission Hills Country Club, Inc. to obtain and deliver to the Administrative Agent a Deposit Account Control Agreement with respect to Wells Fargo, N.A. account number #########, (iii) cause MH Villas, Inc. to obtain and deliver to the Administrative Agent a Deposit Account Control Agreement with respect to Wells Fargo, N.A. account number #########, (iv) cause ClubCorp USA, Inc. to obtain and deliver to the Administrative Agent a Deposit Account Control Agreement with respect to The Bank of New York Mellon, N.A. account numbers ######### and #########, (v) cause ClubCorp International, Inc. to obtain and deliver to the Administrative Agent a Deposit Account Control Agreement with respect to The Bank of Mellon New York, N.A. account number #########, (vi) cause ClubCorp Mezzanine Borrower, LLC to obtain and deliver to the Administrative Agent a Deposit Account Control Agreement with respect to Bank of America, N.A. account number #########, (vii) cause ClubCorp Mortgage Borrower, LLC to obtain and deliver to the Administrative Agent a Deposit Account Control Agreement with respect to Bank of America, N.A. account number ######### and (viii) cause ClubCorp USA, Inc. to obtain and deliver to the Administrative Agent a Securities Account Control Agreement with respect to The Bank of New York Mellon, N.A. account number #########.

 

2


 

Schedule 7.01(b)

 

I.  SUMMARY OF EXISTING LIENS

 

The following is a summary of liens that are described in more detail in the table set forth in Section II of this Schedule 7.01(b):

 

1.               Liens in favor of General Electric Capital Corporation on the assets of certain Restricted Subsidiaries, including:  (i) real property, (ii) certain leases, and (iii) equity interests in the Stonebriar Country Club Joint Venture and Monarch Country Club, Inc.

 

2.               Federal and local defendant suit lien with original file number DC-10-02350 on a Restricted Subsidiary in favor of various plaintiffs in an amount not to exceed $1,000,000

 

3.               Federal and local defendant suit lien with original file number D-2153-08-E on a Restricted Subsidiary in favor of a plaintiff in an amount not to exceed $1,000,000.

 

4.               Local judgment liens on the assets of certain Restricted Subsidiaries in favor of various plaintiffs.

 

5.               Lien on certain real property of CCS, LLC in favor of Atlantic Capital Bank.

 

6.               Liens in connection with deposit arrangements for Wells Fargo Accounts ######### (ClubCorp Mortgage Borrower, LLC), ######### (Fair Oaks Club Corp.) and ######### (ClubCorp Mezzanine Borrower, LLC).

 

7.               Liens in connection with deposit arrangements for JPMorgan Chase, N.A. Accounts ######### (ClubCorp Mortgage Borrower, LLC), ######### (ClubCorp Mortgage Borrower, LLC), ######### (ClubCorp Mezzanine Borrower, LLC), ######### (ClubCorp Mezzanine Borrower, LLC), ######### (Greenpoint Club, Inc.), ######### (Memorial Stadium Club Management Corp.) and ######### (Stonebriar Country Club Joint Venture) and ######### (Monarch Country Club, Inc.).

 

8.               The following liens in connection with purchase money equipment financings or leases of equipment:

 

a.                                       Liens on certain leases and equipment of Barton Creek Resort & Clubs, Inc. in favor of De Lage Landen Financial Services, Inc.

 

b.                                      Liens on certain leases and equipment of Brookhaven Country Club, Inc in favor of Texas Capital Bank, N.A.

 

c.                                       Liens on certain leases and equipment of ClubCorp Turkey Creek Golf Club, LLC in favor of Wells Fargo Equipment Finance, Inc.

 

d.                                      Liens in favor of Kubota Tractor Corporation on certain goods, equipment and inventory of ClubCorp USA, Inc., including, but not limited to, tractors, implements, mowers, backhoes, augers, skid steer loaders, compact track loaders, excavators, rough terrain vehicles and utility vehicles.

 

e.                                       Liens in favor of Marquette Equipment Finance on certain equipment, software and personal property of ClubCorp, Inc. (merged into ClubCorp USA, Inc. on the closing date), including, but not limited to, golf course maintenance equipment.

 


 

f.                                         Liens in favor of GPS Industries, LLC on certain equipment of Currituck Golf, LLC installed on golf carts, including, but not limited to, GPS units and related hardware and accessories.

 

g.                                      Lien in favor of Lane Equipment Company on a Taylor Yogurt Machine of Houston City Club, Inc.

 

h.                                      Lien in favor of IOS Capital related on certain leases and equipment of Stonebriar Country Club Joint Venture.

 

i.                                          Liens in favor of Textron Financial Corporation (and, in the case of GCC Asset Management, Inc., Gleneagles Country Club) on certain equipment and inventory of certain Restricted Subsidiaries, including, but not limited to, golf cars and utility vehicles.

 

j.                                          Liens in favor of General Electric Capital Corporation on certain assets of certain Restricted Subsidiaries including, but not limited to, equipment (and specifically Toro equipment), accounts, general intangibles and inventory.

 

k.                                       Liens in favor of National City Commercial Capital Company LLC on certain equipment of certain Restricted Subsidiaries.

 

l.                                          Lien in favor of IKON Financial SVCS on certain equipment of Anthem Golf Club, LLC.

 

2

 

Schedule 7.01(b)

 

II.  Existing Liens

 

 

Key codes:

 

 

A =

UCC Filings (may include fixture filings)

 

B =

Federal Tax Liens

 

C =

State Tax Liens

 

D =

Federal and Local Judgments

 

E =

Federal Local Litigation Search (Pending Suits)/Defendant Suits

 

F =

Fixture Filings

 

G =

Bankruptcy

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Akron Management Corp.

 

OH — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

06/04/2003

 

OH00064620080

 

03/12/2008

 

20080720056

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All equipment, described herein or otherwise, leased to or financed for the debtor by Security Party under that certain Master Lease Agreement No. 8320471-001 including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

05/04/2007

 

OH00114794513

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company LLC

 

Equipment; Reference Lease No. 97403000

 

06/29/2007

 

OH00116735581

 

 

 

 

 

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Aliso Viejo Golf Club Joint Venture

 

CA — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

04/04/2005

 

05-7021954043

 

02/22/2010

 

10-72235251 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

12/02/2005

 

05-7050994392

 

07/16/2010

 

10-72384742 Continuation

Anthem Golf, LLC

 

AZ — Secretary of State

 

A

 

UCC-1

 

General Electric Capital Corporation

 

As more fully described on Exhibit A attached hereto and made a part hereof and any and all additions, attachments, accessories and accessions and any and all substitutions, replacements or exchanges therefor, and any and all insurance and/or other proceeds thereof, securing Debtor’s obligations under that certain Lease Agreement between General Electric Capital Corporation and Del Webb Corporation.

 

01/03/2005

 

200513490181

 

08/07/2009

 

09/05/2009

 

200513490181 Continuation Amendment

 

2

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

01/30/2007

 

200714643499

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

Toro Equipment per attached Exhibit A, including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto.

 

02/22/2007

 

200714679968

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

Toro Equipment per attached Exhibit A, including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto.

 

02/22/2007

 

200714679979

 

 

 

 

 

 

 

 

 

 

UCC-1

 

IKON Financial SVCS

 

All equipment now or hereafter leased in an equipment leasing transactions in connection with that certain Master Agreement No. 1017754, Product Schedule No. 1017754ML, as amended from time to time, between IOS Capital, LLC as Lessor and Debtor herein, including, without limit, the equipment listed below, and all additions, improvements, attachments, accessories, accessions, upgrades and replacements related thereto, and any and all substitutions or exchanges, and any and all products, insurance and/or other proceeds (cash and non-cash) there from.

 

11/20/2008

 

200815629702

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company LLC

 

Equipment; Reference Lease No. 116847000

 

12/02/2008

 

200815640785

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

Plaintiff:  Deutsche Bank National Trust Company

 

Judgment against Defendants including Anthem Golf (foreclosure)

 

04/02/2010

 

2010-0278747

 

 

 

 

 

 

AZ — Maricopa Superior Court

 

D, E

 

JUDGMENT

 

Plaintiff:  Deutsche Bank National Trust Company

 

Judgment against Defendants including Anthem Golf (foreclosure)

 

03/22/2010

 

CV2008-018283

 

 

 

 

 

3

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

April Sound Management Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/13/2003

 

03-0017276723

 

02/04/2008

 

08-00041649 Continuation

 

 

 

 

 

 

UCC -1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/17/2005

 

05-0005247689

 

02/03/2010

 

10-00031865 Continuation

Aspen Glen Golf Club Management Company

 

CO — Secretary of State

 

A

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Reference Lease No. 112476000

 

07/23/2008

 

2008F074247

 

 

 

 

AZ Club, LLC

 

AZ — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

02/25/2010

 

201016074399

 

 

 

 

 

4

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Barton Creek Resort & Clubs, Inc.

 

TX — Secretary of State

 

A

 

UCC -1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

10/06/2003

 

04-0044133524

 

08/06/2008

09/09/2008

 

08-00263283 Amendment 08-00299178 Continuation

 

 

 

 

 

 

UCC -1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

05/12/2005

 

05-0015354679

 

04/01/2010

 

10-00092120 Continuation

 

 

 

 

 

 

UCC-1

 

De Lage Landen Financial Services, Inc.

 

All equipment leased or financed by Secured Party to or for Debtor pursuant to Secured Party’s Contract Number 25025843 together with all additions, attachments, accessories and substitutions to or for the same, and all proceeds of the foregoing.

 

03/16/2010

 

10-0007431208

 

 

 

 

Bay Oaks Country Club, Inc.

 

TX — Secretary of State

 

A

 

UCC -1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/10/2003

 

03-0016652467

 

01/14/2008

 

08-00015520

 

5

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Reference Lease No. 98293000

 

08/17/2007

 

07-0028165413

 

 

 

 

Bear’s Best Atlanta, L.P.

 

GA — Cooperative Authority

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/14/2003

 

0072003001679

 

11/19/2007

 

007200723606 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

06/28/2005

 

0072005009673

 

05/18/2010

 

0072010009271 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company LLC

 

Equipment; Reference Lease No. 97356000

 

07/23/2007

 

672007008742

 

 

 

 

 

 

GA — Gwinnett County Clerk of Superior Court

 

A

 

UCC-1

 

National City Commercial Capital Company LLC

 

Equipment; Reference Lease No. 97356000

 

07/23/2007

 

67-2007-8742

 

 

 

 

 

6

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Bear’s Best Las Vegas, Limited Partnership

 

NV- Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/23/2003

 

2003005218-4

 

02/21/2008

 

2008005657-4 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

10/15/2004

 

2004031453-6

 

10/08/2009

 

2009024389-0 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company LLC

 

Equipment; Reference Lease No. 108290000

 

05/01/2008

 

2008014185-4

 

 

 

 

Bluegrass Club, LLC

 

TN- Department of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/02/2006

 

206006432

 

 

 

 

 

7

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Brookhaven Country Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

06/24/2005

 

05-0020019754

 

05/17/2010

 

10-00141644 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110375000

 

05/12/2008

 

08-0016244803

 

 

 

 

 

 

 

 

 

 

UCC-1

 

Texas Capital Bank, N.A.

 

All of Debtor’s right, title and interest in and to (i) that certain Business Equipment Lease Agreement #22726 dated 01/19/09 and all addenda thereto entered into by and between Curry Auto Leasing, Inc., as lessor, and Brookhaven Country Club, Inc., as lessee, relating to the equipment described below and all renewals, extensions and amendments of said leave; together with all contract rights and rights to payment thereunder, all payments of every kind and character received pursuant thereto, including without limitation, all rentals, payments related to excessive mileage, hours or wear, deposits, charges and fees, all supporting obligations related thereto, all documents related thereto, and all products and proceeds thereof or any of the foregoing; and (ii) the equipment subject to said lease, being that certain 2009 Omni-Watch Various Security Equipment and all accessions and additions thereto and all proceeds thereof.  Exhibit A:  Equipment Description:  Security Equipment

 

02/02/2009

 

09-0003176147

 

 

 

 

 

 

TX — Dallas District Court

 

D

 

JUDGMENT

 

M.F., Individually and as Next Friend of N.A. (a Minor)

 

Judgment awarded to Plaintiff pursuant to Settlement Agreement

 

10/13/2004

 

DC-04-03923

 

 

 

 

 

8

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

JUDGMENT

 

John and Jane Doe, Individually and as Next Friends of Jane Doe #2 and Jane Doe #3 (Minors)

 

Judgment awarded to Plaintiff pursuant to Settlement Agreement

 

12/16/2005

 

DC-04-10186

 

 

 

 

Canyon Gate at Las Vegas, Inc.

 

NV — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/13/2003

 

2003004421-4

 

02/05/2008

 

2008003735-8 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/26/2003

 

2003005510-4

 

02/21/2008

 

2008005760-3 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110384000

 

05/12/2008

 

2008015291-0

 

 

 

 

CCS, LLC

 

DE- Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

06/14/2010

 

02061079

 

 

 

 

 

9

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

GA — Fulton County Clerk of Superior Court

 

A

 

UCC-1

 

Atlantic Capital Bank

 

Collateral more particularly described in the UCC Financing Statement Addendum attached.  All property described on Exhibit B, incorporated herein by reference, now owned or hereafter acquired by Debtor and used in connection with the operation of the real property described in Exhibit A. (Blanket Lien on property located in Fulton County, GA)

 

10/27/2010

 

Bk 49497 Pg 550

 

 

 

 

ClubCorp Braemar Country Club, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

10/16/2007

 

73881694

 

 

 

 

.

 

CA — Secretary of State

 

A

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 108939000

 

03/26/2008

 

087151934250

 

 

 

 

 

 

 

 

D

 

JUDGMENT

 

Plaintiff: Mitchell Gabriel, a minor by Mitchell, John K. Father

 

Small Claims; Judgment entered in favor of Plaintiff in the amount of $2,000 plus $105 for costs

 

05/17/2010

 

10V00424

 

 

 

 

ClubCorp Canyon Crest Country Club, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc.

 

06/06/2008

 

81944378

 

 

 

 

ClubCorp Coto Property Holdings, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 109404000

 

06/07/2008

 

81951217

 

 

 

 

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

06/18/2008

 

82084687

 

 

 

 

 

10

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

ClubCorp Crow Canyon Management Corp.

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/05/2008

 

80428167

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 110262000

 

07/10/2008

 

82359964

 

 

 

 

 

 

CA — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

01/22/2008

 

08-7144313798

 

 

 

 

ClubCorp Financial Management Company

 

OH — Franklin County Court of Common Pleas

 

D

 

JUDGMENT

 

State of Ohio Department of Taxation (Plaintiff)

 

Final assessment of withholding tax in the amount of $8,686.03

 

11/19/2002

 

02JG1120166

 

 

 

 

ClubCorp GCL Corporation

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

04/21/2008

 

81370483

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 109300000

 

04/23/2008

 

81424900

 

 

 

 

 

11

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

ClubCorp Golf of California, L.L.C.

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

05/01/2003

 

31310765

 

03/04/2008

 

80782613 Continuation

ClubCorp Golf of Florida, L.L.C.

 

FL — Secured Transaction Registry

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

03/02/2004

 

200406288176

 

02/03/2009

 

200909965038 Continuation

ClubCorp Golf of Georgia, L.P.

 

GA — Cooperative Authority

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc.

 

03/06/2003

 

007-2003-002565

 

02/25/2008

 

007-2008-004095

 

12

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

06/03/2003

 

007-2003-006110

 

03/13/2008

 

007-2008-005427

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 97373000

 

07/31/2007

 

075-2007-001125

 

 

 

 

 

 

GA — Henry County Clerk of Superior Court

 

A

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 97373000

 

07/31/2007

 

75-2007-1125

 

 

 

 

 

 

 

 

D

 

JUDGMENT

 

Plaintiff:  Scott Contracting

 

Awarded $16,338.00

 

06/22/2010

 

BK808/PG122

 

 

 

 

ClubCorp Golf of North Carolina, L.L.C.

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

03/26/2003

 

30778293

 

03/03/2008

 

80751352 Continuation

 

13

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

ClubCorp Golf of Texas, L.P.

 

TX — Secretary of State

 

A 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

03/19/2003

 

03-0021181006

 

02/27/2008

 

08-0006905 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc.

 

03/19/2003

 

03-0021199742

 

02/27/2008

 

08-00069026 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

06/17/2005

 

05-0019303314

 

05/06/2010

 

10-00130623 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 97317000

 

06/28/2007

 

07-0021937079

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 97374000

 

07/30/2007

 

07-0025681089

 

 

 

 

 

14

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No.             

 

05/15/2008

 

08-0016640358

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 109770000

 

06/09/2008

 

08-0019375689

 

 

 

 

 

 

Travis District Court

 

D, E

 

JUDGMENT

 

Travis County, et al

 

Judgment of $24,934.51 entered against Harry & Lesley Jarbath  Additional defendants Mortgage Electronic Registration Systems, Inc. as nominee for Austin Partners in Lending, LP, ClubCorp Golf of Texas, LP and Hills of Lakeway Property Owners Association, Inc. are not personally liable for the sums due and owing and the Judgment is entered IN REM ONLY against said defendants.

 

10/04/2006

 

D-L-GV-05-003944

 

 

 

 

ClubCorp, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

Marquette Equipment Finance

 

All of the equipment, software and personal property generally described below (the “Property”), leased by Marquette Equipment Finance, LLC to Debtor pursuant to Lease Schedule No. 001, as it incorporates the terms and conditions of the Master Lease Agreement No. MEF0775.  Property includes, but is not limited to the following:  Golf Course Maintenance Equipment.

 

10/28/2009

 

93468821

 

 

 

 

ClubCorp IW Golf Club, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 99118000

 

09/19/2007

 

73550406

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 109320000

 

04/15/2008

 

81307261

 

 

 

 

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

07/28/2008

 

82570966

 

 

 

 

 

15

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

ClubCorp Porter Valley Country Club, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

08/15/2008

 

82799797

 

 

 

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

05/02/2007

 

71653566

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, Inc.

 

Equipment; Lease No. 108936000

 

04/10/2008

 

81259058

 

 

 

 

ClubCorp Teal Bend Golf Club, LLC

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

05/17/2007

 

71853158

 

 

 

 

ClubCorp Turkey Creek Golf Club, LLC

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

07/28/2008

 

82571071

 

 

 

 

 

 

 

 

 

 

UCC-1

 

Wells Fargo Equipment Finance, Inc.

 

Equipment leased under Lease Agreement dated 5/22/2009 between Debtor and AEL Financial, LLC

 

06/16/2009

 

91923793

 

10/08/2009
10/16/2009
07/14/2010

 

93237572
93332852
02452401

 

16

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

ClubCorp USA, Inc.

 

DE — Secretary of State

 

A

 

UCC-1

 

General Electric Capital Corporation

 

All equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under certain Master Lease Agreement 8384147-001, including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

05/19/2008

 

81718053

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All right, title and interest in and to Debtors’ equity interests in Monarch Country Club, Inc., a Florida corporation, as more particularly set forth on Exhibit A attached hereto and incorporated herein by reference, which as of the date of filing in 100%.

 

07/28/2008

 

82571071

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under certain Master Lease Agreement 8434843-001, including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

12/02/2009

 

93838353

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

Equipment described on Lease Schedule # 8434843004 attached thereto.

 

02/04/2010

 

00400550

 

 

 

 

 

 

 

 

 

 

UCC-1

 

First National Capital Corporation

 

All equipment pursuant to a Master Equipment Lease Agreement between Debtor, as Lessee, including but not limited to the following:  various golf course maintenance equipment.  Plus all additions, accessions and attachments thereto, and all substitutions, replacements and proceeds (including insurance proceeds) thereof.

 

03/22/2010

 

00981930

 

 

 

 

 

 

 

 

 

 

UCC-1

 

Kubota Tractor Corporation

 

All goods, equipment and inventory sold or to be sold by Secured Party to Debtor including without limitation all tractors, implements, mowers, backhoes, augers, skid steer loaders, compact track loaders, excavators, rough terrain vehicles, utility vehicles as well as all goods, equipment and inventory distributed by Secured Party (collectively, the “Goods”), all proceeds thereof, and all accounts, general intangibles, chattel paper, instruments and other evidences of indebtedness arising out of the sale, lease, or other disposition of the Goods or otherwise related to or arising out of the Goods.  This is a purchase-money security interest.

 

06/16/2010

 

02103475

 

 

 

 

 

17

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

Equipment described on Lease Schedule # 8434843003 attached thereto.

 

06/16/2010

 

02103632

 

 

 

 

 

 

TX — Dallas District Court

 

D

 

JUDGMENT

 

John and Jane Doe, et al (Plaintiffs)

 

$10,000 judgment awarded in favor of Plaintiffs

 

12/16/2005

 

04-10186-G

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

M.F. et al (Plaintiffs)

 

$12,500 judgment awarded in favor of Plaintiffs

 

10/13/2004

 

04-03923

 

 

 

 

Columbia Tower Club, Inc.

 

WA — King Superior Court

 

D

 

JUDGMENT

 

Daniel Alacantra (Plaintiff)

 

Class-wide settlement entered in favor of Plaintiffs and the Plaintiff Class in the amount of $759,991.50 (includes attorneys fees)

 

06/29/2001

 

98-2-14577-3

 

 

 

 

Countryside Country Club , Inc.

 

FL — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/17/2003

 

200303288645

 

02/07/2008

 

200807596661 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

05/18/2004

 

200406946157

 

05/13/2009

 

20090051968X Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 109589000

 

10/08/2008

 

200809319827

 

 

 

 

 

18

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Currituck Golf, LLC

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

04/13/2010

 

01268691

 

 

 

 

 

 

 

 

 

 

UCC-1

 

GPS Industries, LLC

 

Equipment as described below installed on 75 golf carts at The Currituck Club located at 620 Currituck Clubhouse Dr., Corolla, NC  27927.  Any and all products now or hereafter acquired, leased or rented by debtor, wherever located and which are manufactured or distributed by or bearing the name or trademark of GPS Industries, LLC (“GPSI”), including without limitation the following:  GPSI Transmission Receivers, Displays, Antennae Devices, Course Management Computer, Communications controllers and Wireless Communication Network; GPSI GPS Base Station System and Computer/ Monitor and Computer accessories, Power Transmission Lines and other Supplemental Equipment; GPSI GPS Cart Mounted Display units, mounting hardware and accessories; Printers and all other accessories and attachments to any of the foregoing; and All Related Software Licenses.

 

08/04/2010

 

02708448

 

 

 

 

DeBary Management Corp.

 

FL — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/12/2003

 

200303256417

 

02/06/2008

 

200807585031 Continuation

 

19

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/20/2004

 

20040620634X

 

02/03/2009

 

200909965577C Continuation

Diamante Golf Club Management, Inc.

 

AR — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/11/2003

 

31247369803

 

01/28/2008

08/14/2009

 

7130236473 Continuation 40000000275674 Amendment

Diamond Run Club, Inc.

 

PA — Department of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/06/2003

 

37060580

 

01/09/2008

 

2008011002207 Continuation

 

20

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

03/03/2006

 

2006030602638

 

 

 

 

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

05/15/2008

 

2008051502281

 

 

 

 

Empire Ranch, LLC

 

DE — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/13/2003

 

30391170

 

02/05/2008

 

80428571 Continuation

 

21

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

04/11/2005

 

51161752

 

03032010

 

00716369 Continuation

Fair Oaks Club Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/13/2003

 

03-0017278876

 

02/05/2008

 

08-00042331 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

03/28/2005

 

05-0009837961

 

02/22/2010

 

10-00050027 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 98927000

 

09/11/2007

 

07-0030937645

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110762000

 

06/06/2008

 

08-0020355922

 

 

 

 

 

22

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Fort Bend Acquisition Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/20/2003

 

03-0017976437

 

02/11/2008

 

08-00050676 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

06/10/2004

 

04-0071084498

 

06/09/2009

 

09-00163713 Continuation

GCC Asset Management, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/12/2003

 

03-0017163061

 

02/02/2008

 

08-00040085 Continuation

 

23

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

Additional Debtor: Gleneagles Country Club

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

12/17/2003

 

04-0051430734

 

11/07/2008

 

08-00363691 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 97404000

 

07/16/2007

 

07-0024006180

 

 

 

 

Granch Golf Club, Inc.

 

AZ — Secretary of State

 

A 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc.

 

02/05/2003

 

200312496921

 

01/02/2008 

 

200312496921 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc.  (Lease Transaction)

 

12/07/2004

 

200413455028

 

11/25/2009

 

200413455028 Continuation

 

24

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All Equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under that certain Master Lease Agreement No. 4485993-001 including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

02/27/2007

 

200714688925

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All Equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under that certain Master Lease Agreement No. 4485993-002 including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

04/20/2007

 

200714765645

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Rental Schedule No. 109767000

 

09/19/2008

 

200815556704

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 109767000

 

10/07/2008

 

200815582217

 

 

 

 

Granite Bay Limited Partnership

 

CA — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

01/23/2004

 

0402960195

 

09/07/2004

12/11/2008

 

0410046360 Amendment 0871812909 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

12/02/2005

 

057050981601

 

07/16/2010

 

1072384744 Continuation

 

25

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Greenbrier Country Club, Inc.

 

VA — State Corporation Com.

 

A 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/19/2003

 

03021971034

 

02/11/2008

 

08021172244 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 97423000

 

07/25/2007

 

07072570172

 

 

 

 

Hackberry Creek Country Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/20/2003

 

03-0018051220

 

02/11/2008

 

08-00050659 Continuation

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All Equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under that certain Equipment Lease Agreement No. 4441352-001 including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

12/06/2006

 

06-0039737570

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Rental Schedule No. 109588000

 

10/07/2008

 

08-0032865204

 

 

 

 

 

26

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Haile Plantation Management Corp.

 

FL — Secured Transaction Registry

 

A 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

11/19/2004

 

2004

0835785X

 

11/04/2009

 

200901473748 Continuation

 

 

FL — Alachua County Circuit Court

 

D 

 

JUDGMENT

 

Aurora Loan Services LLC

 

$439,129.27 — Judgment is a foreclosure on property owned by Jorelle L. Laakso.  Haile Plantation Management Corp. was named as a secondary Defendant due to a potential encumbrance it holds on the property.  The case is listed as closed, but the property has not yet sold in foreclosure and, therefore, the judgment is still open.

 

 

 

 

 

 

 

 

Hearthstone Country Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

01/22/2004

 

04-0054868287

 

12/11/2008

 

08-00394060 Continuation

Hill Country Golf, Inc.

 

TX — Secretary of State

 

A 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

03/10/2004

 

04-0060170725

 

02/23/2009

 

09-00051591 Continuation

 

27

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

07/09/2007

 

07-0023006735

 

 

 

 

Hills II of Lakeway Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/14/2003

 

03-0017401915

 

11/16/2007

 

07-00391024

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

06/08/2006

 

06-0019394779

 

 

 

 

Houston City Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Lane Equipment Company

 

1 152x12 Taylor Yogurt Machine 115/60/1 Serial #J8067667

 

07/24/2006

 

06-0024913095

 

 

 

 

 

28

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Hunter’s Green Acquisition Corp.

 

FL — Secured Transaction Registry

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

03/25/2005

 

200509278793

 

02/23/2010

 

20100204960X

Indigo Run  Asset Corp.

 

SC — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

08/26/2003

 

030826-0925123

 

05/16/2008

 

080516-1057180 Continuation

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All Equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under that certain Master Lease Agreement No. 4490722-001 including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

03/26/2007

 

070324-0939402

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110041000

 

06/23/2008

 

080623-1025477+

 

 

 

 

 

29

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Irving Club Acquisition Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/17/2005

 

05-0005247801

 

02/03/2010

 

10-00032058 Continuation

 

 

TX — Dallas District Court

 

E

 

DEFENDANT SUIT

 

Plaintiff: Jennifer Logan, individually and as Representative of the Estate of Christopher Logan, Deceased, and as Next Friend of Collin Logan, a Minor Additional Defendants: American Honda Motor Co Inc,  and Debbie Seeders and Dickie Seeders d/b/a A-Plus Golf Ball Retrieval

 

Motor Vehicle Accident — Wrongful Death

 

03/01/2010

 

DC-10-02350

 

 

 

 

Kingwood Country Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

11/07/2003

 

04-0047396518

 

09/29/2008

 

08-00318486 Continuation

 

30

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc.

 

06/19/2007

 

07-0020667472

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 97394000

 

09/26/2007

 

07-0032877791

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 109593000

 

05/23/2008

 

08-0017722411

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No.             

 

05/23/2008

 

08-0017724786

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

Equipment; Lease No. 7316560-004

 

03/11/2009

 

09-0006986816

 

 

 

 

 

 

TX — Harris District Court

 

D

 

JUDGMENT

 

Plaintiff: Richard Hamilton

 

Default judgment against Kingwood County Club, Inc. and Clubcorp USA, Inc. – $215,000 + interest + court costs

 

09/08/2006

 

2006-57342

 

 

 

 

Laurel Springs Holdco, LLC

 

DE — Secretary of State

 

A

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 113023000

 

08/20/2008

 

82848883

 

 

 

 

Manager for CCHH, Inc.

 

SC — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

02/13/2003

 

030213-1213134

 

02/06/2008

 

080206-1400115 Continuation

 

31

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110030000

 

07/01/2008

 

080701-1013058

 

 

 

 

Monarch Country Club, Inc.

 

FL — Secured Transaction Registry

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above.  Equipment/Lease No. 70289

 

02/01/2001

 

200100024239

 

11/04/2005

 

200501084981 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

11/14/2003

 

200305456421

 

10/15/2008

 

200809359101 Continuation

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All of debtor’s now owned or existing and hereafter acquired or arising accounts, machinery, equipment fixtures, inventory, goods, chattel paper, investment property, general intangibles, instruments and documents, together with all accessions to, substitutions for and replacements, products and proceeds of all of the foregoing, as more particularly described on Exhibit B attached hereto and by this reference incorporated herein, located on the real estate described on Exhibit A attached hereto.

 

07/21/2008

 

200808788637

 

 

 

 

 

32

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

FL — Martin County Circuit Court

 

A

 

UCC-1

 

General Electric Capital Corporation

 

All of debtor’s now owned or existing and hereafter acquired or arising accounts, machinery, equipment fixtures, inventory, goods, chattel paper, investment property, general intangibles, instruments and documents, together with all accessions to, substitutions for and replacements, products and proceeds of all of the foregoing, as more particularly described on Exhibit B attached hereto and by this reference incorporated herein, located on the real estate described on Exhibit A attached hereto.

 

07/31/2008

 

BK2343 PG918

 

 

 

 

New England Country Club Management, Inc.

 

MA — Secretary of the Common-wealth

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/11/2003

 

200318282730

 

01/30/2008

 

200862867870 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

04/19/2005

 

200538258700

 

03/19/2010

 

201079061660 Continuation

 

33

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/21/2006

 

200645796300

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110172000

 

06/27/2008

 

200866687500

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All Equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under that certain Lease Agreement No. 7620244-001 including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

07/21/2008

 

200808788637

 

 

 

 

Nicklaus Golf Club, L.P. at Lionsgate

 

KS — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

06/25/2007

 

6375109

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 97415000

 

10/22/2007

 

95816478

 

 

 

 

 

34

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Northwood Management Corp.

 

GA — Cooperative Authority

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

01/12/2004

 

00704000425

 

12/09/2008

 

00708025429

Oak Pointe Country Club

 

MI — Department of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/13/2003

 

2003029238-4

 

02/05/2008

 

2008019622-7 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/13/2003

 

2003029262-5

 

02/05/2008

 

2008019623-9 Continuation

 

35

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

03/24/2003

 

2003055602-9

 

03/03/2008

 

2008033859-6 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110095000

 

04/28/2008

 

2008066034-7

 

 

 

 

Oakmont Management Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/12/2003

 

03-0017157589

 

02/04/2008

 

08-00040515 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/03/2005

 

05-0003700247

 

01/28/2010

 

10-00025876 Continuation

 

36

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

TX — Denton District Court

 

D

 

JUDGMENT

 

Plaintiff:  City of Corinth

 

Judgment against Defendant for Court Costs ($240.00) and Abstractor’s Fees ($175.00)

 

05/19/2009

 

2008-1674-393

 

 

 

 

Pyramid Club Management, Inc.

 

PA — Philadelphia County Prothonotary

 

D

 

JUDGMENT

 

Commonwealth of Pennsylvania City of Philadelphia (Plaintiff)

 

Judgment awarded against Pyramid for Business Taxes due in the amount of $10,073.50

 

04/19/2004

 

CE-04-03-70-5005

 

 

 

 

Quail Hollow Management, Inc.

 

OH — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/22/2005

 

OH00086634186

 

02/08/2010

 

20100390173

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

04/18/2005

 

OH00088461392

 

03/19/2010

 

20100780356

 

37

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Queen’s Harbour Corporation

 

FL — Secured Transaction Registry

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

10/14/2003

 

200305203868

 

08/19/2008

 

200808977979 Continuation

Richardson Country Club Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 109764000

 

10/22/2007

 

95816478

 

 

 

 

River Creek Country Club, Inc.

 

VA — State Corporation Commission

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/14/2003

 

03021471527

 

11/19/2007

 

07111973035 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

03/30/2005

 

05033072125

 

02/23/2010

 

10022370391 Continuation

 

38

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All Equipment, described herein or otherwise, leased to or financed for the Debtor by Secured Party under that certain Lease Agreement No. 4379415-001 including all accessories, accessions, replacements, additions, substitutions, add-ons and upgrades thereto, and any proceeds therefrom.

 

10/07/2005

 

05100770583

 

08/03/2010

 

10080339511 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 97496000

 

08/14/2007

 

07081470436

 

 

 

 

Shady Valley Management Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/12/2003

 

030017148599

 

02/04/2008

 

0800041292 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/05/2004

 

040056433742

 

01/07/2009

 

0900005032 Continuation

 

39

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Silver Lake Management Corp.

 

OH — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

01/26/2007

 

OH00111361038

 

 

 

 

Southern Trace Country Club of Shreveport, Inc.

 

LA - Database

 

A

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

2/13/2003

 

09-1018583

 

11/19/2007

 

09-1086328 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

6/24/2005

 

09-1044950

 

5/18/2010

 

09-1133660 Continuation

 

40

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

LA — Caddo Parish

 

A/F 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

2/13/2003

 

09-1018583

 

11/19/2007

 

09-1086328 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation and/or manufactured and/or distributed by Textron Golf, Turf and Specialty Products, a division of Textron Inc. wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, whether or not bearing the E-Z-Go trademark or trade name, including, but not limited to, golf cars and utility vehicles etc. (Lease Transaction)

 

6/24/2005

 

09-1044950

 

5/18/2010

 

09-1133660 Continuation

Stonebriar Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

General Electric Capital Corporation

 

All right, title and interest in and to debtors’ equity interests in Stonebriar Country Club Joint Venture, a Texas general partnership, as more particularly set forth on Exhibit A attached hereto and incorporated herein by reference, which as of the date of filing is 50%.

 

07/08/2008

 

08-0024195524

 

 

 

 

Stonebriar Country Club Joint Venture

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

11/21/2003

 

04-0048874237

 

10/21/2008

 

08-00343945 Continuation

 

41

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

IOS Capital

 

All equipment now or hereafter leased in an equipment leasing transaction in connection with that certain Master Agreement No. 1014545, as amended from time to time.

 

01/19/2007

 

07-0001992876

 

 

 

 

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 111234000

 

07/14/2008

 

08-0023520525

 

 

 

 

 

 

 

 

 

 

UCC-1

 

General Electric Capital Corporation

 

All of Debtor’s now owned or existing and hereafter acquired or arising accounts, machinery, equipment, fixtures, inventory, goods, chattel paper, investment property, general intangibles, instruments and documents, together with all accessions to, substitutions for and replacements, products and proceeds of all of the foregoing, as more particularly described on Exhibit B attached hereto and by this reference incorporated herein, located on the real estate described on Exhibit A attached hereto.

 

07/08/2008

 

08-0024195524

 

 

 

 

Stonebriar Management Corp.

 

TX — Secretary of State

 

A

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 100456000

 

12/04/2007

 

07-0040849476

 

 

 

 

Stonebriar Management Holdings, LLC

 

DE — Secretary of State

 

A

 

UCC-1

 

General Electric Capital Corporation

 

All right, title and interest in and to debtors’ equity interests in Stonebriar Country Club Joint Venture, a Texas general partnership, as more particularly set forth on Exhibit A attached hereto and incorporated herein by reference, which as of the date of filing is 50%.

 

07/18/2008

 

82487203

 

 

 

 

Stonehenge Club, Inc.

 

VA — State Corporation Commission

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/13/2003

 

03021371068

 

11/19/2007

 

07111973756 Continuation

 

42

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Tampa Palms Club, Inc.

 

FL — Secured Transaction Registry

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/13/2004

 

200408505956

 

09/29/2009

 

200901270138 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110751000

 

05/19/2008

 

200808350771

 

 

 

 

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All equipment and inventory financed by Textron Financial Corporation, wherever located, in which Debtor now or hereafter has rights, none of which debtor is authorized to sell, lease or otherwise dispose of without the written consent of the secured party, etc. (Lease Transaction)

 

09/28/2009

 

200901263646

 

 

 

 

The Club at Cimarron, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/06/2003

 

03-0016505676

 

01/07/2008

 

08-00007189 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 109953000

 

06/09/2008

 

08-0019376488

 

 

 

 

 

43

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

TX — Hidalgo District Court

 

E

 

DEFENDANT SUIT

 

Plaintiff:  Idalia Rodriguez, individually and on behalf of Marcela Flores, a Minor

 

Personal Injury — Claim for maximum amount of $26,000,000 as combined damages.

 

09/18/2008

 

D-2153-08-E

 

 

 

 

The Owner’s Club at Hilton Head, L.P.

 

SC — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All of Seller’s right, title and interest in and to the Timeshare Notes (as provided for in Exhibit A attached hereto), together with all accounts, accounts receivable, contract rights, general intangibles, chattel paper and other receivables, all as more particularly described in Exhibit A to this financing statement.

 

04/23/1996

 

960423-111035A

 

01/07/2000

02/05/2001

02/26/2001

11/04/2005

05/14/2010

 

000107-143153A (A)
010205-125113A (A)
010226-132600A (C)
051104-0953446 (C)
100514-1121216 (A)

Timarron Golf Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

05/04/2004

 

04-0066774892

 

05/04/2009

 

09-00126915 Continuation

Treesdale Country Club, Inc.

 

PA — Department of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/14/2003

 

37081399

 

11/16/2007

 

2007111601131 Continuation

 

44

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

03/28/2003

 

20030288998

 

03/03/2008

 

2008030301507 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 109697000

 

06/24/2008

 

2008062412877

 

 

 

 

Walnut Creek Management Corporation

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/20/2003

 

03-0017976760

 

02/11/2008

 

08-00050788 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/28/2003

 

03-0019086714

 

02/14/2008

 

08-00055203 Continuation

 

45

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

TX — Tarrant District Court

 

D

 

JUDGMENT

 

Plaintiff:  Allen Smith, et al

 

Judgment is the amount of $4,133.32 — appears judgment was paid but no release is on file.

 

09/01/2005

 

201699-03

 

 

 

 

Wildflower Country Club, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/06/2003

 

03-0016537085

 

01/07/2008

 

08-0007188 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

01/22/2004

 

04-0054861139

 

12/11/2008

 

08-00394047 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110204000

 

06/09/2008

 

08-0019374113

 

 

 

 

 

46

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

Willow Creek Management, Inc.

 

TX — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

12/23/2003

 

04-0052114077

 

12/01/2008

 

08-00382767 Continuation

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

01/12/2004

 

04-0053912226

 

12/08/2008

 

08-00390868 Continuation

Woodside Plantation Country Club, Inc.

 

SC — Secretary of State

 

A

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

02/05/2003

 

030205-1107420

 

01/04/2008

 

080104-1010085 Continuation

 

47

 

Debtor

 

Jurisdiction

 

Scope of
Search

 

Type of
filing found

 

Secured
Party

 

Collateral

 

Original
File Date

 

Original
File Number

 

Amdt.
File Date

 

Amdt. File
Number

 

 

 

 

 

 

UCC-1

 

Textron Financial Corporation

 

All personal property including equipment and inventory wherever located now owned or hereafter acquired, manufactured or distributed by Textron Golf, Turf & Specialty Products including but not limited to golf carts and utility vehicles, all present and future attachments, accessories, replacements, substitutes and all changes thereto and the proceeds of the foregoing including proceeds in the form of goods, accounts, chattel paper, documents, instruments and general intangibles, pursuant to the agreement between debtor and secured party, debtor has agreed not to encumber the personal property described above. 

 

03/02/2005

 

050302-0923299

 

02/17/2010

 

100217-1111429 Continuation

 

 

 

 

 

 

UCC-1

 

National City Commercial Capital Company, LLC

 

Equipment; Lease No. 110829000

 

07/18/2008

 

080718-1018109

 

 

 

 

 

48

 

Schedule 7.02(e)

 

Existing Investments

 

1. The following development loans and the accrued and accruing interest thereon:

 

LENDER

 

BORROWER

 

TOTAL INDEBTEDNESS (PRINCIPAL
AND ACCRUED INTEREST)

 

GP Bear’s Best Atlanta, Inc.

 

Bear’s Best Atlanta, L.P.

 

$

7,549,167

 

GP Bear’s Best Las Vegas, Inc.

 

Bear’s Best Las Vegas, Limited Partnership

 

$

13,549,409

 

Lionsgate Golf Club, Inc.

 

Nicklaus Golf Club, L.P. at Lionsgate

 

$

4,261,645

 

ClubCorp International, Inc.

 

CG Inversiones S.A. de C.V.

 

$

8,701,321

 

ClubCorp Mexico, Inc.

 

Isla Maya Club de Golf, S.A. de C.V.

 

$

1,323,932

 

ClubCorp Mexico, Inc.

 

La Vista Club de Golf, S.A. de C.V.

 

$

11,930,064

 

 

2. The following equity investments:

 

INVESTOR

 

RECIPIENT

 

INVESTMENT

 

ClubCorp USA, Inc.

 

ClubCorp LSprings, L.P.

 

$

8,001,037

 

ClubCorp USA, Inc.

 

CCS, LLC

 

$

8,520,746

 

ClubCorp USA, Inc.

 

The Club at Woodside Plantation

 

$

139,714

 

GP Bear’s Best Atlanta, Inc.

 

Bear’s Best Atlanta, L.P.

 

$

871,962

 

GP Bear’s Best Las Vegas, Inc.

 

Bear’s Best Las Vegas, Limited Partnership

 

$

3,582,371

 

Granite Bay Management, Inc.

 

Granite Bay Limited Partnership and Granite Bay Golf Club, Inc.

 

$

14,671,479

 

Lionsgate Golf Club, Inc.

 

Nicklaus Golf Club, L.P. at Lions Gate

 

$

9,289,066

 

ClubCorp Mexico, Inc.

 

ClubCorp Latin America, S.A. de C.V. and Club de Golf Financiero, S.A. de C.V.

 

$

8,680,669

 

ClubCorp Mexico, Inc.

 

Promociones Turisticas Professionales, S.A. de C.V.

 

$

247,507

 

 


 

Schedule 7.02(p)

 

Existing Joint Venture Investments

 

1.             Avendra, LLC

2.             Diamante’, a Private Membership Golf Club, LLC

3.             Capital Club Company Ltd.

4.             ClubCorp Golf Lipperswil, AG

5.             Golf Acquisition, L.L.C.

 


 

Schedule 7.03(c)

 

Existing Indebtedness

 

1              Indebtedness under that certain Note Purchase Agreement, dated as of April 8, 1996, by and among Textron Financial Corporation, as buyer, The Owners Club at Hilton Head, L.P., as seller, and The Manager of the Owner’s Club, Inc., as general partner, as amended by that certain Amendment Agreement, dated as of December 1, 1999, among The Owners Club at Hilton Head, L.P., as the Hilton Head Seller, The Owners Club at the Homestead, L.P., as the Homestead Seller, The Owners Club at Barton Creek, L.P., as the Barton Creek seller, and Textron Financial Corporation, as buyer, with an outstanding balance with respect to the Hilton Head Timeshare Notes (as defined in the Note Purchase Agreement) of $107,307.99.

 

2.             Ground Lease of Bluegrass Club, LLC pursuant to which Bluegrass Club, LLC is obligated to make payments on outstanding indebtedness to Volunteer State Bank in the amount of $1,484,087.15.

 

3.             Outstanding indebtedness of CCS, LLC pursuant to that certain Loan Agreement between CCS, LLC, as borrower, and Atlantic Capital Bank, as lender, dated as of October 15, 2010, as may be amended, amended and restated, supplemented or modified from time to time, with an outstanding balance of $4,002,491.67.

 

4.             Outstanding indebtedness of Stonebriar Country Club Joint Venture and Monarch Country Club, Inc. pursuant to that certain Loan Agreement among Stonebriar Country Club Joint Venture, as borrower, Monarch Country Club, Inc., as borrower and General Electric Capital Corporation, as lender, dated as of July 16, 2008, as may be amended, amended and restated, supplemented or modified from time to time, with an outstanding balance of $32,043,680.00.

 

5.             Outstanding obligations to JPMorgan Chase Bank, N.A. f/k/a Bank One, N.A. by ClubCorp USA, Inc., in relation to a corporate purchase card (P-Card), with an average daily balance of $250,000.

 

6.             Guaranty by ClubCorp USA, Inc. of an amount not to exceed $601,510.00 for FF&E expenses under that certain Amended and Restated Lease Agreement, dated September 16, 2009, between Citrus Club, Inc. and Parkway Orlando, LLC, as may be amended, amended and restated, supplemented or modified from time to time.

 

7.             Guaranty by ClubCorp International, Inc. for the benefit of AB&C Leasing de Mexico, S.A. de C.V., pursuant to that certain Guaranty, dated as of August 1, 2008, for equipment lease no. AP-0044 between AB&C Leasing de Mexico, S.A. de C.V. and La Vista Club de Golf, S.A. de C.V.

 

8.             Attributable Indebtedness in the aggregate amount of $17,991,786 as set forth below:

 


 

AB&C Leasing de Mexico

 

Cart Lease

 

$

197,345

 

Advanced Imaging

 

Copiers

 

$

1,424

 

AEL Financial

 

GPS System

 

$

40,860

 

Agricredit Acceptance LLC

 

Utility Carts

 

$

8,219

 

Cannon Financial Services

 

Copiers

 

$

85,602

 

CHG El Camino S.A.P. I de CV

 

Cart Lease

 

$

232,855

 

Equiverturf & Golf S.A. de C.V.

 

Golf Course Equipment

 

$

37,053

 

GE Capital

 

Golf Course Equipment

 

$

1,663,081

 

GPS Industries Inc.

 

GPS System

 

$

132,829

 

IKON Financial Services

 

Copiers

 

$

233,779

 

LCA Bank Corp

 

Radio System

 

$

14,536

 

PNC Equipment Finance

 

Golf Course Equipment

 

$

5,428,648

 

Proshot Investors, LLC

 

GPS System

 

$

102,965

 

Suntrust Equipment Finance

 

Golf Course Equipment

 

$

12,448

 

Textron Financial Corp.

 

Golf Carts

 

$

9,784,319

 

Wells Fargo Financial Leasing

 

Golf Course Equipment

 

$

15,823

 

 

 

Total:

 

$

17,991,786

 

 

9.             The following development loans:

 

ENTITY PROVIDING LOAN

 

ENTITY RECEIVING LOAN

 

PRINCIPAL

 

ACCRUED
INTEREST

 

TOTAL
INDEBTEDNESS

 

GP Bear’s Best Atlanta, Inc.

 

Bear’s Best Atlanta, L.P.

 

$

4,287,129

 

$

3,262,038

 

$

7,549,167

 

GP Bear’s Best Las Vegas, Inc.

 

Bear’s Best Las Vegas, Limited Partnership at Lionsgate

 

$

7,255,294

 

$

6,294,115

 

$

13,549,409

 

Lionsgate Golf Club, Inc.

 

Nicklaus Golf Club, L.P. at LionsGate

 

$

2,509,744

 

$

1,751,901

 

$

4,261,645

 

ClubCorp International, Inc.

 

CG Inversiones S.A. de C.V.

 

$

6,297,925

 

$

2,403,396

 

$

8,701,321

 

ClubCorp Mexico, Inc.

 

Isla Maya Club de Golf, S.A. de C.V.

 

$

1,323,932

 

 

—

 

$

1,323,932

 

ClubCorp Mexico, Inc.

 

La Vista Club de Golf, S.A. de C.V.

 

$

5,920,912

 

$

6,009,152

 

$

11,930,064

 

 


 

Schedule 7.09
Burdensome Agreements

 

1.                                       Limited Partnership Agreement of Bear’s Best Atlanta, L.P., dated as of February 23, 2000, between GP Bear’s Best Atlanta, Inc. and Golden Bear Holdings, Ltd., as may be amended, amended and restated, supplemented or modified from time to time.

 

2.                                       Limited Partnership Agreement of Bear’s Best Las Vegas, L.P., dated as of April 3, 2000, between GP Bear’s Best Las Vegas, Inc. and Golden Bear Holdings, Ltd., as may be amended, amended and restated, supplemented or modified from time to time.

 

3.                                       Limited Partnership Agreement of ClubCorp LSprings, L.P., dated as of September 24, 1999, between Laurel Springs Holdco, LLC and Golden Bear Holdings, Ltd., as may be amended, amended and restated, supplemented or modified from time to time.

 

4.                                       Limited Partnership Agreement of Nicklaus Golf Club, L.P., at Lions Gate, dated as of December 15, 1998, between Lionsgate Golf Club, Inc. and Golden Bear Holdings, Ltd., as may be amended, amended and restated, supplemented or modified from time to time.

 

5.                                       LLC Member Operating Agreement, dated as of March 18, 1994, among Cooper Community, Inc., as developer, Diamante Golf Club Partners, Inc., as investor, and Diamante’, a Private Membership Golf Club, LLC, as club, as may be amended, amended and restated, supplemented or modified from time to time.

 

6.                                       Limited Partnership Agreement of Granite Bay Limited Partnership, dated as of August 1993, between Granite Bay Golf Club Partners and Granite Bay Golf Club, Inc., as may be amended, amended and restated, supplemented or modified from time to time.

 

7.                                       Cooperative Joint Venture Contract, dated as of October 19, 1994, between Capital Mansion & Club Corporation of America, as may be amended, amended and restated, supplemented or modified from time to time.

 

8.                                       Shareholders’ Agreement, dated as of November 28, 2001, between ClubCorp International, Inc. and Ernst Goehner Stiftung, as may be amended, amended and restated, supplemented or modified from time to time.

 

9.                                       Amended and Restated Limited Liability Company Agreement of Avendra, LLC, dated as of March 31, 2001, among MI Procurement Holdings, LLC, HT-Avendra, L.L.C., Avendra Holdings, Inc., Bass Hotels & Resorts, Inc., ClubCorp Aven Holdings, Inc., Fairmont Hotels & Resorts (U.S.) Inc., Dennis M. Baker, Mark Berey and Brian Weed, as may be amended, amended and restated, supplemented or modified from time to time.

 

10.                                 Loan Agreement among Stonebriar Country Club Joint Venture, as borrower, Monarch Country Club, Inc., as borrower and General Electric Capital Corporation, as lender, dated as of July 16, 2008, as may be amended, amended and restated, supplemented or modified from time to time.

 

11.                                 Loan Agreement between CCS, LLC, as borrower, and Atlantic Capital Bank, as lender, dated as of October 15, 2010, as may be amended, amended and restated, supplemented or modified from time to time.

 


 

Schedule 10.02
Notices

 

The Borrower:

c/o ClubCorp Club Operations, Inc.
3030 LBJ Freeway
Suite 600
Dallas, TX 75234
Attn: General Counsel
Facsimile: 972-888-6271

 

 

with a copy to:

Bruce A. Bonjour
Perkins Coie LLP
131 S. Dearborn Street
Chicago, IL 60603
Facsimile: 312-324-9650

 

 

EXHIBIT A

 

FORM OF COMMITTED LOAN NOTICE

 

Date:  [•]

 

To:          Citicorp North America, Inc., as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

I, the undersigned Responsible Officer, hereby certify, solely in my capacity as an officer of the Borrower and not in an individual capacity, as of the date hereof, that I am the                                                                                     of the Borrower, and that, as such, I am authorized to execute and deliver this Committed Loan Notice (the “Notice”) to the Administrative Agent on behalf of the Borrower pursuant to Section 2.02(a) of the Credit Agreement, and that:

 

A.            The undersigned hereby request[s] (select one):

 

A Borrowing of:

 

o            Revolving Credit Loans

o            Term B Loans

 

OR

 

o            A conversion or continuation of [Revolving Credit] [Term B] Loans

 

1.             On                                                                          (a Business Day).

 

2.             In the amount of                                                 .(1)

 

3.             Comprised of                                                                               .

 

[Class and Type of Loan requested](2)

 

(1)  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.  Except as provided in Section 2.03(c)(i) and Section 2.04(c)(i) of the Credit Agreement, each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof.

 


 

4.             For Eurodollar Rate Loans:  with an Interest Period of        months.(3)

 

5.             [To the account designated below:

 

 [                                                                                         ](4)

 

[B.           After giving effect to any Revolving Credit Borrowing, the aggregate Outstanding Amount of the Revolving Credit Loans of the Borrower plus the aggregate Outstanding Amount of all L/C Obligations plus the aggregate Outstanding Amount of all Swing Line Loans does not exceed $50,000,000.](5)

 

[C.           Upon acceptance of any or all of the Loans offered by the Lenders in response to this request, the Borrower shall be deemed to have represented and warranted that the conditions to lending specified in Section[s 4.01 and](6) 4.02 of the Credit Agreement have been satisfied. ](7)

 

(2)  To be Base Rate Loans, if not specified.

 

(3)  To be one (1) month if not specified.

 

(4)  Applicable with respect to a Borrowing only.

 

(5)  Applicable with respect to a Borrowing of Revolving Credit Loans only.

 

(6)  Applicable with respect to initial Borrowing on the Closing Date only.

 

(7)  Applicable with respect to a Borrowing only.

 

2


 

IN WITNESS WHEREOF, the undersigned has executed this Notice as of the date first written above herein.

 

 

 

CLUBCORP CLUB OPERATIONS, INC.,

 

as Borrower

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

[Signature page to COMMITTED Loan Notice]

 


 

EXHIBIT B

 

FORM OF SWING LINE LOAN NOTICE

 

To:          Citicorp North America, Inc., as Swing Line Lender and Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

I, the undersigned Responsible Officer, hereby certify, solely in my capacity as an officer of the Borrower and not in an individual capacity, as of the date hereof, that I am the                                                                                     of the Borrower, and that, as such, I am authorized to execute and deliver this Swing Line Loan Notice (the “Notice”) to the Administrative Agent on behalf of the Borrower pursuant to Section 2.04(b) of the Credit Agreement, and that:

 

A.                                   The undersigned hereby requests a Swing Line Loan:

 

1.                                       On                                                                        (a Business Day).

 

2.                                       In the amount of $                                              .(1)

 

3.                                       To the account designated below:

 

                                                [                                        ]

 

B.                                     After giving effect to any Swing Line Borrowing, the aggregate Outstanding Amount of the Revolving Credit Loans of the Borrower plus the aggregate Outstanding Amount of all L/C Obligations plus the aggregate Outstanding Amount of all Swing Line Loans does not exceed $50,000,000.

 

C.                                     Upon acceptance of the Swing Line Loan offered by the Lenders in response to this request, the Borrower shall be deemed to have represented and warranted that the conditions to lending specified in Section 4.02 of the Credit Agreement have been satisfied.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

(1)  This amount must be a minimum of $100,000.

 

B-1


 

IN WITNESS WHEREOF, the undersigned has executed this Notice as of the date first written above herein.

 

 

CLUBCORP CLUB OPERATIONS, INC.,

 

as Borrower

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

[signature page to Swing Line Loan Notice]

 


 

EXHIBIT C-1

 

FORM OF TERM NOTE

 

Date:  [•]

 

FOR VALUE RECEIVED, the undersigned, hereby promise to pay to                                            or its registered assigns (the “[New] Term Lender”), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the aggregate unpaid principal amount of each [New] Term [B] Loan made by the [New] Term Lender to the Borrower under that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

The Borrower promises to pay interest on the aggregate unpaid principal amount of each [New]Term [B] Loan made by the [New] Term Lender to the Borrower under the Credit Agreement from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement.  All payments of principal and interest shall be made to the Administrative Agent for the account of the [New] Term Lender in Dollars and in immediately available funds.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.

 

This [New] Term Note is one of the [New] Term Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This [New] Term Note is also entitled to the benefits of the Guaranty and Security Agreement and is secured by the Collateral.  Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this [New] Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement.  [New] Term [B] Loans made by the [New] Term Lender shall be evidenced by one or more loan accounts or records maintained by the [New] Term Lender in the ordinary course of business.  The [New] Term Lender may also attach schedules to this [New] Term Note and endorse thereon the date, amount and maturity of its [New] Term [B] Loans and payments with respect thereto.

 

The Borrower, for itself and its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this [New] Term [B] Note.

 

C-1-1


 

THIS [NEW] TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT AS SET FORTH IN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

 

 

CLUBCORP CLUB OPERATIONS, INC.,

 

as Borrower

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

[signature page to Term Note]

 


 

[NEW] TERM [B] LOANS AND PAYMENTS WITH RESPECT THERETO

 

Date

 

Type of
Term [B]
Loan Made

 

Amount of
Term [B]
Loan Made

 

End of
Interest
Period

 

Amount of
Principal or
Interest
Paid This
Date

 

Outstanding
Principal
Balance
This Date

 

Notation
Made By

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

EXHIBIT C-2

 

FORM OF REVOLVING CREDIT NOTE

 

Date:  [•]

 

FOR VALUE RECEIVED, the undersigned, hereby promises to pay to                              or its registered assigns (the “[New] Revolving Credit Lender”), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the aggregate unpaid principal amount of each Revolving Credit Loan from time to time made by the [New] Revolving Credit Lender to the Borrower under that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

The Borrower promises to pay interest on the aggregate unpaid principal amount of each Revolving Credit Loan from time to time made by the [New] Revolving Credit Lender to the Borrower under the Credit Agreement from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement.  All payments of principal and interest shall be made to the Administrative Agent (or, in the case of Swing Line Loans, to the Swing Line Lender) for the account of the [New] Revolving Credit Lender in Dollars and in immediately available funds.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.

 

This [New] Revolving Credit Note (the “[New] Revolving Credit Note”) is one of the [New] Revolving Credit Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This [New] Revolving Credit Note is also entitled to the benefits of the Guaranty and Security Agreement and is secured by the Collateral.  Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this [New] Revolving Credit Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement.  Revolving Credit Loans made by the [New] Revolving Credit Lender shall be evidenced by one or more loan accounts or records maintained by the Revolving Credit Lender in the ordinary course of business.  The [New] Revolving Credit Lender may also attach schedules to this [New] Revolving Credit Note and endorse thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect thereto.

 

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this [New] Revolving Credit Note.

 

C-2-1


 

THIS [NEW] REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT AS SET FORTH IN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

 

CLUBCORP CLUB OPERATIONS, INC.,

 

as Borrower

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

[Signature Page to Revolving Note]

 

 

LOANS AND PAYMENTS WITH RESPECT THERETO

 

Date

 

Type of
Loan Made

 

Currency
and
Amount of
Loan Made

 

End of
Interest
Period

 

Amount of
Principal or
Interest
Paid This
Date

 

Outstanding
Principal
Balance
This Date

 

Notation
Made By

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

EXHIBIT D

 

FORM OF COMPLIANCE CERTIFICATE

 

                     , 20

 

Financial Statement Date:  [•]

 

To:          [Citicorp North America, Inc.], as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

I, the undersigned Responsible Officer, hereby certify, solely in my capacity as an officer of the Borrower and not in an individual capacity, as of the date hereof, that I am the                                                                                       of the Borrower, and that, as such, I am authorized to execute and deliver this Compliance Certificate (the “Certificate”) to the Administrative Agent on behalf of the Borrower pursuant to Section 6.02(b) of the Credit Agreement, and that:

 

[Use following paragraph 1 for fiscal year end financial statements]

 

1.             (a) Attached hereto as Schedule 1 is the consolidated balance sheet of Holdings and its Restricted Subsidiaries as of the Financial Statement Date listed above, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year and the figures contained in the forecasts for the previous fiscal year provided pursuant to Section 6.01(c) of the Credit Agreement, as required by Section 6.01(a) of the Credit Agreement for the fiscal year of Holdings and its Restricted Subsidiaries ended as of the Financial Statement Date listed above, all in reasonable detail and prepared in accordance with GAAP (other than with respect to forecasts as applicable), together with a report and opinion of Deloitte & Touche LLP or any other independent certified public accountant of nationally recognized standing (to the extent required by 6.01(a) of the Credit Agreement).  Attached hereto as Schedule 2 are the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements as required by Section 6.01(d) of the Credit Agreement.

 

(b) Attached hereto as Schedule 1 is a certificate of an independent certified public accountant certifying all financial statements being delivered herein and stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default under Section 7.10 of the Credit Agreement or, if any such Default or Event of Default exists, stating the nature and status of such event.

 

 

D-1


 

[Use following paragraph 1 for fiscal quarter-end financial statements.]

 

1.             Attached hereto as Schedule 1 is the consolidated balance sheet of Holdings and its Restricted Subsidiaries as of the Financial Statement Date listed above, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the fiscal year of the Borrower then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, the corresponding portion of the previous fiscal year and the figures contained in the forecasts for the previous fiscal year provided pursuant to Section 6.01(c) of the Credit Agreement, as required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Holdings and its Restricted Subsidiaries ended as of the Financial Date listed above, all in reasonable detail, and such consolidated balance sheet and consolidated statements attached hereto as Schedule 1 fairly present in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its Restricted Subsidiaries in accordance with GAAP (other than with respect to forecasts as applicable), subject only to normal year-end audit adjustments and the absence of footnotes.  Attached hereto as Schedule 2 are the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements as required by Section 6.01(d) of the Credit Agreement.

 

2.             The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under [his/her] supervision, a review of the activities of Holdings and its Restricted Subsidiaries during such fiscal period.

 

[select one:]

 

3.             Based on the examination described in paragraph 2 above and the knowledge of the undersigned no Default has occurred and is continuing.

 

-or-

 

[The following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status (including what actions have been taken and what actions are proposed to be taken):]

 

4.             The financial covenant analyses and information demonstrating compliance with Section 7.10 of the Credit Agreement, set forth on Schedule 3 attached hereto, are delivered in compliance with Section 6.02(b) of the Credit Agreement.

 

5.             Attached hereto as Schedule 4 is a description of all events, conditions or circumstances during the [fiscal quarter][fiscal year] ended as of the Financial Statement Date listed above requiring a mandatory prepayment under Section 2.05(b) of the Credit Agreement [and a calculation of Excess Cash Flow](1).

 

(1)  In the case of any delivery of financial statements under Section 6.01(a) of the Credit Agreement in respect of any fiscal year ending on or after December 27, 2011.

 

D-2


 

6.             Attached hereto as Schedule 5 are Membership Reports for each of the golf club and non-golf club (i.e., business and sporting club) businesses.(2)

 

[Use following paragraph for Certificate delivered with fiscal year end financial statements]

 

6.             Attached hereto as Schedule 6 is a list of all Patents (as defined in the Security Agreement) and Trademarks (as defined in the Security Agreement) registered or pending with the United States Patent and Trademark Office and registered or pending Copyrights (as defined in the Security Agreement) with the United States Copyright Office, in each case constituting After-Acquired Intellectual Property (as defined in the Security Agreement) that is Material Intellectual Property owned by any Guarantor as of the last day of the period for which this Compliance Certificate is delivered, to the extent that such After-Acquired Intellectual Property that is Material Intellectual Property is not covered by any previous Intellectual Property Security Agreement so signed and delivered by the Borrower or any other Guarantor, as applicable.

 

(2)  For quarterly deliveries.

 

D-3


 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first written above herein.

 

 

CLUBCORP CLUP OPERATIONS, INC.,

 

as Borrower

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

[Signature page to Clubcorp Compliance Certificate]

 

 

Schedule 1 to
Exhibit D

 

[AUDITED FINANCIAL STATEMENTS
(as required by Section 6.01(a) of the Credit Agreement)]

 

[UNAUDITED FINANCIAL STATEMENTS
(as required by Section 6.01(b) of the Credit Agreement)]

 

[Signature Page to Clubcorp Compliance Certificate]

 


 

Schedule 2 to
Exhibit D

 

[CONSOLIDATING FINANCIAL STATEMENTS
(as required by Section 6.01(d) of the Credit Agreement)]

 

[Signature Page to Clubcorp Compliance Certificate]

 


 

Schedule 3 to
Exhibit D

 

For the [Quarter/Year] ended                                        (“Statement Date”)

 

($ in 000’s)

 

[Calculations demonstrating compliance with Section 7.10 of the Credit Agreement]

 


 

Schedule 4 to
Exhibit D

 

[(a) Description of all events, conditions or circumstances during the fiscal quarter ended as of the Financial Statement Date listed above requiring a mandatory prepayment under Section 2.05(b) of the Credit Agreement.]

 

[(b) Calculation of Excess Cash Flow(1)]

 

(1)  In the case of any delivery of financial statements under Section 6.01(a) of the Credit Agreement in respect of any fiscal year ending on or after December 27, 2011.

 


 

Schedule 5 to
Exhibit D

 

[Membership Reports for each of the golf club and non-golf club (i.e., business and sporting club) businesses.]

 


 

Schedule 6 to
Exhibit D

 

[PATENTS][TRADEMARKS][COPYRIGHTS]

 

[Include complete identification information for all Registrations/Applications/Licenses]

 

D-5


 

EXHIBIT E

 

FORM OF
ASSIGNMENT AND ASSUMPTION

 

Reference is made to that certain Credit Agreement, dated as of [                       ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

The Assignor identified on Schedule I hereto (the “Assignor”) and the Assignee identified on Schedule I hereto (the “Assignee”) agree as follows:

 

1.                                       The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without recourse to the Assignor, as of the Effective Date (as defined below), the interest described in Schedule I hereto (the “Assigned Interest”) in and to the Assignor’s rights and obligations under the Credit Agreement with respect to those credit facilities contained in the Credit Agreement as are set forth on Schedule I hereto (individually, an “Assigned Facility”; collectively, the “Assigned Facilities”), in a principal amount for each Assigned Facility as set forth on Schedule I hereto.

 

2.                                       The Assignor (a) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or document furnished pursuant thereto, other than that the Assignor has not created any adverse claim upon the interest being assigned by it hereunder and that such interest is free and clear of any such adverse claim and (b) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower, any of its Affiliates or any other obligor or the performance or observance by the Borrower, any of its Affiliates or any other obligor of any of their respective obligations under the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto.

 

3.                                       The Assignee (a) represents and warrants that it is (i) legally authorized to enter into this Assignment and Assumption and (ii) is not an Affiliate of Holdings or any of its Restricted Subsidiaries and is otherwise an Eligible Assignee; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered pursuant to Section 6.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (c) agrees that it will, independently and without reliance upon the Assignor, the Agents or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or

 

E-1


 

thereto; (d) appoints and authorizes the Agents to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Agents by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender including its obligations pursuant to Section 10.15 of the Credit Agreement.

 

4.                                       The effective date of this Assignment and Assumption shall be the Effective Date of Assignment described in Schedule I hereto (the “Effective Date”).  Following the execution of this Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance by it and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of the Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date of such acceptance and recording by the Administrative Agent).

 

5.                                       Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to the Effective Date and to the Assignee for amounts which have accrued subsequent to the Effective Date.

 

6.                                       From and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement, to the extent provided in this Assignment and Assumption, have the rights and obligations of a Lender under the Credit Agreement and under the other Loan Documents and shall be bound by the provisions thereof and (b) the Assignor shall, to the extent provided in this Assignment and Assumption, relinquish its rights and be released from its obligations under the Credit Agreement.

 

7.                                       This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York (without regard to conflicts of law principles except as set forth in Section 5-1401 and 5-1402 of the New York General Obligations Law).

 

8.                                       This Assignment and Assumption may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery by telecopier of an executed counterpart of a signature page to this Assignment and Assumption shall be effective as delivery of an original executed counterpart of this Assignment and Assumption.  The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

E-2


 

IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be executed as of the date first above written by their respective duly authorized officers on Schedule I hereto.

 

[Consented to and] Accepted for Recordation in the Register:

 

Required Consents (if any):

 

 

 

[Citicorp North America, Inc.]
as Administrative Agent, [L/C Issuer] [and Swing Line Lender]

 

CLUBCORP CLUB OPERATIONS, INC.

 

 

 

By:

 

 

By:

 

 

Name:

 

 

Name:

 

Title:

 

 

Title:

 

[SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION]

 


 

Schedule I

 

Assignment and Assumption with respect to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

Name of Assignor:

 

Name of Assignee:

 

Effective Date of Assignment:

 

Credit Facility Assigned

 

Principal
Amount Assigned

 

Commitment Percentage
Assigned

 

 

 

 

 

 

 

Term Loan Facility

 

$

 

 

 

%

 

 

 

 

 

 

Revolving Credit Facility

 

$

 

 

 

%

 

[Name of Assignor]

 

[Name of Assignor]

 

 

 

By:

 

 

By:

 

 

Title:

 

 

Title:

 

E-2

 

EXHIBIT F

 

FORM OF GUARANTY AND SECURITY AGREEMENT

 

[see separately executed document]

 

F-1


 

EXHIBIT G

 

FORM OF JOINDER AGREEMENT

 

JOINDER AGREEMENT, dated as of                         , 20       (this “Agreement”), by and among [NEW REVOLVING CREDIT LENDER][NEW TERM LENDER] (each, an “Additional Lender” and, collectively, the “Additional Lenders”), CLUBCORP CLUB OPERATIONS, INC. (the “Borrower”), and CITICORP NORTH AMERICA, INC. (the “Administrative Agent”).

 

RECITALS:

 

WHEREAS, reference is hereby made to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined) , among CCA Club Operations Holdings, LLC, a Delaware limited liability company, the Borrower, each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer;

 

WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower may establish [Increased Revolving Credit Commitments][New Term Commitments] (the “Additional Commitments”) with existing Lenders and/or Additional Lenders; and

 

WHEREAS, subject to the terms and conditions of the Credit Agreement, Additional Lenders shall become Lenders pursuant to one or more Joinder Agreements;

 

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:

 

Each Additional Lender (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the most recently delivered financial statements delivered pursuant to Section 6.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Additional Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender (including Section 10.15).

 

Upon (i) the execution of a counterpart of this Agreement by each Additional Lender, the Administrative Agent and the Borrower and (ii) the delivery to the Administrative Agent of a fully executed counterpart (including by way of telecopy or other electronic transmission) hereof, each of the undersigned Additional Lenders shall become Lenders under the Credit Agreement.

 

G-1


 

For purposes of the Credit Agreement, the initial notice address of each Additional Lender shall be as set forth below its signature below.

 

For each Additional Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Additional Lender may be required to deliver to the Administrative Agent pursuant to Section 10.15 of the Credit Agreement.

 

This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.

 

This Agreement, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

 

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT AS SET FORTH IN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery by telecopier of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.  The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.

 

G-2


 

IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first written above.

 

 

[NAME OF ADDITIONAL LENDER]

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

Notice Address:

 

 

 

 

 

Attention:

 

Telephone:

 

Facsimile:

 

H-1


 

EXHIBIT H

 

FORM OF ADMINISTRATIVE QUESTIONNAIRE

 

Please accurately complete the following information and return via fax to the attention of Agency Administration at Citicorp North America, Inc. as soon as possible, at Fax No. 212-994-0961

 

LENDER LEGAL NAME TO APPEAR IN DOCUMENTATION:

 

GENERAL INFORMATION - DOMESTIC LENDING OFFICE:

 

Institution Name:

 

 

 

Street Address:

 

 

 

City, State, Zip Code:

 

 

 

GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:

 

Institution Name:

 

 

 

Street Address:

 

 

 

City, State, Zip Code:

 

 

 

POST-CLOSING, ONGOING CREDIT CONTACTS/NOTIFICATION METHODS:

 

CREDIT CONTACTS:

 

Primary Contact:

 

 

 

Street Address:

 

 

 

City, State, Zip Code:

 

 

 

Phone Number:

 

 

 

Fax Number:

 

 

 

Backup Contact:

 

 

 

Street Address:

 

 

 

City, State, Zip Code:

 

 

 

Phone Number:

 

 

 

Fax Number:

 

 

H-2


 

TAX WITHHOLDING:

 

 

Nonresident Alien           Y*            N

 

 

* Form W-8BEN or W-8ECI Enclosed

 

 

 

 

 

Tax ID Number

 

 

 

POST-CLOSING, ONGOING ADMIN. CONTACTS / NOTIFICATION METHODS:

 

 

 

ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, FEES, ETC.

 

 

 

Contacts:

 

 

 

 

 

Street Address:

 

 

 

 

 

City, State, Zip Code:

 

 

 

 

 

Phone Number:

 

 

 

 

 

Fax Number:

 

 

 

 

 

PAYMENT INSTRUCTIONS:

 

 

 

Name of Bank to which funds are to be transferred:

 

 

 

 

 

 

 

 

 

Routing Transit/ABA number of Bank to which funds are to be transferred:

 

 

 

 

 

Name of Account, if applicable:

 

 

 

 

 

Account Number:

 

 

 

 

 

Additional information:

 

 

 

 

 

 

 

 

 

MAILINGS:

 

 

 

Please specify the person to whom the Borrower should send financial and compliance information received subsequent to the closing (if different from primary credit contact):

 

 

 

 

Name:

 

 

 

 

 

Street Address:

 

 

 

 

 

City, State, Zip Code:

 

 

 

 

 

It is very important that all the above information be accurately completed and that this ques-tionnaire be returned to the person specified in the introductory paragraph of this questionnaire as

 

 

H-3


 

soon as possible.  If there is someone other than yourself who should receive this question-naire, please notify us of that person’s name and fax number and we will fax a copy of the ques-tionnaire.  If you have any questions about this form, please call Agency Administration at Citicorp North America, Inc.

 

H-4


 

EXHIBIT I-1

 

[FORM OF]
SECTION 10.15(a) US TAX CERTIFICATE (THE “CERTIFICATE”)
(For Non-US Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

                     , 20  

 

Reference is hereby made to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

Pursuant to the provisions of Section 10.15(a) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Code Section 871(h)(3)(B), (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with the undersigned’s conduct of a U.S. trade or business.

 

The undersigned has furnished the Administrative Agent with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and Administrative Agent in writing and (2) the undersigned shall furnish the Borrower and Administrative Agent with a duly and properly completed and signed certificate and IRS Form W-8BEN in either the calendar year in which any payment is to be made to the undersigned, or in either of the two calendar years preceding such payment, after the occurrence of any event requiring a change in the most recent form, certificate or evidence previously delivered by it to the Borrower and the Administrative Agent and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.

 

I-1


 

IN WITNESS WHEREOF, each of the parties hereto has caused this Certificate to be duly executed and delivered as of the date first above written.

 

 

[LENDER]

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO US TAX CERTIFICATE – NON US LENDERS THAT ARE NOT PARTNERSHIPS]

 

 

EXHIBIT I-2

 

[FORM OF]
SECTION 10.15(a) US TAX CERTIFICATE (THE “CERTIFICATE”)
(For Non-US Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

 

                      , 20  

 

Reference is hereby made to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company , ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

Pursuant to the provisions of Section 10.15(a) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s), (iii) neither the undersigned nor any of its partners/members is a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), (iv) none of its partners/members is a 10-percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) or 881(c)(3)(B) of the Code, (v) none of its partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Loan Document are effectively connected with a U.S. trade or business conducted by the undersigned or its partners/members.

 

The undersigned has furnished the Borrower and Administrative Agent with Internal Revenue Service (“IRS”) Form W-8IMY accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption; provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the undersigned to provide, in the case of a partner/member not claiming the portfolio interest exemption, an IRS Form W-8ECI, IRS Form W-9 or IRS Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing any exemption from U.S. federal withholding tax available to such partner/member. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and Administrative Agent in writing and (2) the undersigned shall furnish the Borrower and Administrative Agent with a duly and properly completed and signed certificate and IRS Form W-8IMY and accompanying IRS Forms W-8BEN in either the calendar year in which any payment is to be made to the undersigned, or in either of the two calendar years preceding such payment, after the occurrence of any event requiring a change in the most recent form, certificate or evidence previously delivered by it to the Borrower and the Administrative Agent and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.

 

I-2


 

IN WITNESS WHEREOF, each of the parties hereto has caused this Certificate to be duly executed and delivered as of the date first above written.

 

 

 

[LENDER]

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO US TAX CERTIFICATE – NON US LENDERS THAT ARE PARTNERSHIPS]

 


 

EXHIBIT I-3

 

[FORM OF]
SECTION 10.15(a) US TAX CERTIFICATE (THE “CERTIFICATE”)
(For Non-US Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

                      , 20  

 

Reference is hereby made to that certain Credit Agreement, dated as of [                       ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

Pursuant to the provisions of Sections 10.7(d) and 10.15(a) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) it is not a 10-percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) or 881(c)(3)(B) of the Code, (v) it is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with a U.S. trade or business conducted by the undersigned.

 

The undersigned has furnished the Lender granting it a participation with Internal Revenue Service (“IRS”) Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall furnish such Lender with a duly and properly completed and signed certificate IRS Form W-8BEN in either the calendar year in which any payment is to be made to the undersigned, or in either of the two calendar years preceding such payment, after the occurrence of any event requiring a change in the most recent form, certificate or evidence previously delivered by it to such Lender and from time to time thereafter if reasonably requested by such Lender..

 

I-3


 

IN WITNESS WHEREOF, each of the parties hereto has caused this Certificate to be duly executed and delivered as of the date first above written.

 

 

[NAME OF PARTICIPANT]

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO US TAX CERTIFICATE – NON US PARTICIPANTS THAT ARE NOT PARTNERSHIPS]

 


 

EXHIBIT I-4

 

[FORM OF]
SECTION 10.15(a) US TAX CERTIFICATE (THE “CERTIFICATE”)
(For Non-US Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

 

                      , 20  

 

Reference is hereby made to that certain Credit Agreement, dated as of [                       ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

Pursuant to the provisions of Sections 10.07(d) and 10.15(a) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) neither the undersigned nor any of its partners/members is a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), (iv) none of its partners/members is a 10-percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) or 881(c)(3)(B) of the Code, (v) none of its partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Loan Document are effectively connected with a U.S. trade or business conducted by the undersigned or its partners/members.

 

The undersigned has furnished the Lender granting it a participation with Internal Revenue Service (“IRS”) Form W-8IMY accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption; provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the undersigned to provide, in the case of a partner/member not claiming the portfolio interest exemption, an IRS Form W-8ECI, IRS Form W-9 or IRS Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing any exemption from U.S. federal withholding tax available to such partner/member. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall furnish such Lender with a duly and properly completed and signed certificate and IRS Form W-8IMY and accompanying IRS Forms W-8BEN in either the calendar year in which any payment is to be made to the undersigned, or in either of the two calendar years preceding such payment, after the occurrence of any event requiring a change in the most recent form, certificate or evidence previously delivered by it to such Lender and from time to time thereafter if reasonably requested by such Lender.

 

I-4


 

IN WITNESS WHEREOF, each of the parties hereto has caused this Certificate to be duly executed and delivered as of the date first above written.

 

 

[NAME OF PARTICIPANT]

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO US TAX CERTIFICATE – NON US PARTICIPANTS THAT ARE PARTNERSHIPS]

 


 

EXHIBIT J

 

FORM OF
AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION

 

Reference is made to that certain Credit Agreement, dated as of November [    ], 2010 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among CCA Club Operations Holdings, LLC, a Delaware limited liability company, ClubCorp Club Operations, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (individually, a “Lender” and collectively, the “Lenders”) and Citicorp North America, Inc., as Administrative Agent, Swing Line Lender and L/C Issuer (the “Administrative Agent”).

 

The Assignor identified on Schedule I hereto (the “Assignor”) and the Assignee identified on Schedule I hereto (the “Assignee”) agree as follows:

 

1.                                       The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without recourse to the Assignee, as of the Effective Date (as defined below), the interest described in Schedule I hereto (the “Assigned Interest”) in and to the Assignor’s rights and obligations under the Credit Agreement with respect to those Term Loans contained in the Credit Agreement as are set forth on Schedule I hereto (individually, an “Assigned Facility” and collectively, the “Assigned Facilities”), in a principal amount for each Assigned Facility as set forth on Schedule I hereto.

 

2.                                       The Assignor [(a)] makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or document furnished pursuant thereto, other than that the Assignor has not created any adverse claim upon the interest being assigned by it hereunder and that such interest is free and clear of any such adverse claim and (ii) the financial condition of the Borrower, any of its Affiliates or any other obligor or the performance or observance by the Borrower, any of its Affiliates or any other obligor of any of their respective obligations under the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto[, and (b) represents and warrants that (i) it is an Affiliated Lender under and as defined in the Credit Agreement and (ii) except as previously disclosed in writing to the Administrative Agent and the Term Lenders, as of the date hereof, neither it nor the Sponsor has any material non-public information (“MNPI”) with respect to Holdings, any of its Subsidiaries or their respective securities that has not been disclosed to the Assignee, the Administrative Agent and the Lenders (other than those Lenders that do not wish to receive MNPI with respect to Holdings, any of its Subsidiaries or their respective securities) prior to the Effective Date to the extent such information could reasonably be expected to have a material effect upon, or otherwise be material, to Assignor’s decision to assign its Term Loans to such Affiliated Lender.](12).

 

(12)                            Include if Assignor will be an Affiliated Lender.

 

J-1


 

3.                                       The Assignee represents and warrants that [(a)] it is legally authorized to enter into this Assignment and Assumption[, (b) it is an Affiliated Lender under and as defined in the Credit Agreement, (c) as of the date hereof, neither such Assignee nor the Sponsor to which the Assignee is an Affiliate, has any MNPI with respect to Holdings, any of its Subsidiaries or their respective securities that has not been disclosed to the Assignor, the Administrative Agent and the Lenders (other than those Lenders that do not wish to receive MNPI with respect to Holdings, any of its Subsidiaries or their respective securities) prior to the Effective Date, to the extent that such information could reasonably be expected to have a material effect upon, or otherwise be material to Assignee’s decision to purchase and assume the Assignor’s rights and obligations under the Credit Agreement with respect to those Term Loans contained in the Credit Agreement as are set forth on Schedule I hereto and (d) after giving affect to its purchase and assumption of the Assigned Interest, the aggregate principal amount of all Loans held by Affiliated Lenders will not exceed 20% of the aggregate principal amount of all Loans and Commitments outstanding under the Credit Agreement.] (13)

 

4.                                       The Assignee (a) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered pursuant to Section 6.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (b) agrees that it will, independently and without reliance upon the Assignor, the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (c) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (d) agrees that it will be bound by the provisions of the Credit Agreement including, without limitation, Section 10.07(j)(iv), and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender including its obligations pursuant to Sections 10.07(j) or 10.15 of the Credit Agreement.

 

5.                                       The effective date of this Assignment and Assumption shall be the Effective Date of Assignment described in Schedule I hereto (the “Effective Date”).  Following the execution of this Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance by it and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of the Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date of such acceptance and recording by the Administrative Agent).

 

6.                                       Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to the Effective Date and to the Assignee for amounts which have accrued subsequent to the Effective Date.

 

(13)                            Include if Assignee will be an Affiliated Lender.

 

J-2


 

7.                                       From and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement, to the extent provided in this Assignment and Assumption, have the rights and obligations of a Lender under the Credit Agreement and under the other Loan Documents and shall be bound by the provisions thereof and (b) the Assignor shall, to the extent provided in this Assignment and Assumption, relinquish its rights and be released from its obligations under the Credit Agreement.

 

8.                                       This Assignment and Assumption shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflicts of law principles except as set forth in Section 5-1401 and 5-1402 of the New York General Obligations Law).

 

9.                                       This Assignment and Assumption may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery by telecopier of an executed counterpart of a signature page to this Assignment and Assumption shall be effective as delivery of an original executed counterpart of this Assignment and Assumption.  The Administrative Agent may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

J-3


 

IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be executed by their respective duly authorized officers as of the Effective Date set forth on Schedule I hereto.

 

 

Acknowledged by and Accepted for Recordation in the Register:

 

Acknowledged by:

 

 

 

CITICORP NORTH AMERICA, INC., as Administrative Agent

 

CLUBCORP CLUB OPERATIONS, INC.

 

 

 

By:

 

 

By:

 

 

Name:

 

 

Name:

 

Title:

 

 

Title:

 

J-4


 EX-10.9 378 a2202241zex-10_9.htm EX-10.9

Exhibit 10.9

 

EXECUTION COPY

 

 

GUARANTY AND SECURITY AGREEMENT

 

Dated as of November 30, 2010

 

 

among

 

 

CLUBCORP CLUB OPERATIONS, INC.

 

and

 

Each other Grantor
From Time to Time Party Hereto

 

 

and

 

 

CITICORP NORTH AMERICA, INC.
as Administrative Agent

 

 


 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I

DEFINED TERMS

1

 

 

 

Section 1.1.

Definitions

1

Section 1.2.

Certain Other Terms

5

 

 

 

ARTICLE II

GUARANTY

5

 

 

 

Section 2.1.

Guaranty

5

Section 2.2.

Limitation of Guaranty

6

Section 2.3.

Contribution

6

Section 2.4.

Authorization; Other Agreements

6

Section 2.5.

Guaranty Absolute and Unconditional

7

Section 2.6.

Waivers

7

Section 2.7.

Reliance

8

 

 

 

ARTICLE III

GRANT OF SECURITY INTEREST

8

 

 

 

Section 3.1.

Collateral

8

Section 3.2.

Grant of Security Interest in Collateral

9

 

 

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

9

 

 

 

Section 4.1.

Title; No Other Liens

9

Section 4.2.

Perfection and Priority

9

Section 4.3.

Jurisdiction of Organization; Chief Executive Office

10

Section 4.4.

Locations of Inventory, Equipment and Books and Records

10

Section 4.5.

Pledged Collateral

10

Section 4.6.

Instruments and Tangible Chattel Paper Formerly Accounts

11

Section 4.7.

Intellectual Property

11

Section 4.8.

Commercial Tort Claims

12

Section 4.9.

Deposit Accounts; Securities Accounts

12

Section 4.10.

Specific Collateral

12

Section 4.11.

Enforcement

12

Section 4.12.

Representations and Warranties in the Credit Agreement

12

 

 

 

ARTICLE V

COVENANTS

12

 

 

 

Section 5.1.

Maintenance of Perfected Security Interest; Further Documentation and Consents

12

Section 5.2.

Changes in Locations, Name, Etc.

13

Section 5.3.

Pledged Collateral

14

Section 5.4.

Accounts

15

Section 5.5.

Commodity Contracts

15

Section 5.6.

Delivery of Instruments and Tangible Chattel Paper and Control of Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper

15

Section 5.7.

Intellectual Property

16

Section 5.8.

Notices

17

Section 5.9.

Notice of Commercial Tort Claims

17

Section 5.10.

Compliance with Credit Agreement

18

 

 

 

ARTICLE VI

REMEDIAL PROVISIONS

18

 

 

 

Section 6.1.

Code and Other Remedies

18

Section 6.2.

Accounts and Payments in Respect of General Intangibles

21

 


 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 6.3.

Pledged Collateral

22

Section 6.4.

Proceeds to be Turned over to and Held by Administrative Agent

23

Section 6.5.

Deficiency

23

 

 

 

ARTICLE VII

THE ADMINISTRATIVE AGENT

23

 

 

 

Section 7.1.

Administrative Agent’s Appointment as Attorney-in-Fact

23

Section 7.2.

Authorization to File Financing Statements

25

Section 7.3.

Authority of Administrative Agent

25

Section 7.4.

Duty; Obligations and Liabilities

25

 

 

 

ARTICLE VIII

MISCELLANEOUS

26

 

 

 

Section 8.1.

Florida Guarantors

26

Section 8.2.

Reinstatement

26

Section 8.3.

Release of Collateral

26

Section 8.4.

Independent Obligations

27

Section 8.5.

No Waiver by Course of Conduct

27

Section 8.6.

Amendments in Writing

28

Section 8.7.

Additional Grantors; Additional Pledged Collateral

28

Section 8.8.

Notices

28

Section 8.9.

Successors and Assigns

28

Section 8.10.

Counterparts

28

Section 8.11.

Severability

28

Section 8.12.

Governing Law

29

Section 8.13.

Waiver of Jury Trial

29

Section 8.14

Mexico Pledged Equity

29

 

ii


 

TABLE OF CONTENTS

 

 

ANNEXES AND SCHEDULES

 

 

 

 

Annex 1

Form of Pledge Amendment

 

 

 

 

Annex 2

Form of Joinder Agreement

 

 

 

 

Annex 3

Form of Intellectual Property Security Agreement

 

 

 

 

Annex 4

Form of Release of Security Interest in Intellectual Property

 

 

 

 

Schedule 1

Commercial Tort Claims

 

 

 

 

Schedule 2

Filings

 

 

 

 

Schedule 3

Jurisdiction of Organization; Chief Executive Office

 

 

 

 

Schedule 4

Location of Inventory and Equipment

 

 

 

 

Schedule 5

Pledged Collateral

 

 

 

 

Schedule 6

Intellectual Property

 

 

 

 

Schedule 7

Deposit Accounts

 

 

iii

 

GUARANTY AND SECURITY AGREEMENT (this “Agreement”), dated as of November 30, 2010, by CCA Club Operations Holdings, LLC, a Delaware limited liability company (“Holdings”), Clubcorp Club Operations, Inc., a Delaware corporation (the “Borrower”) and each of the other entities listed on the signature pages hereof or that becomes a party hereto pursuant to Section 8.6 (such parties, together with Holdings and the Borrower, the “Grantors”), in favor of Citicorp North America, Inc., as administrative agent and collateral agent (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”) for the Lenders, the L/C Issuer and each other Secured Party (each as defined in the Credit Agreement referred to below).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Credit Agreement dated as of November 30, 2010 (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Holdings, the Borrower, the L/C Issuer (as defined therein), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and the Administrative Agent, the Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

WHEREAS, each Grantor (other than the Borrower) has agreed to guaranty the Obligations (as defined in the Credit Agreement) of the Borrower;

 

WHEREAS, each Grantor will derive substantial direct and indirect benefits from the making of the extensions of credit under the Credit Agreement; and

 

WHEREAS, it is a condition precedent to the obligation of the Lenders and the L/C Issuers to make their respective extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have executed and delivered this Agreement to the Administrative Agent;

 

NOW, THEREFORE, in consideration of the premises and to induce the Lenders, the L/C Issuer and the Administrative Agent to enter into the Credit Agreement and to induce the Lenders and the L/C Issuers to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Administrative Agent as follows:

 

ARTICLE I

 

DEFINED TERMS

 

Section 1.1.           Definitions.  (a) Capital terms used herein without definition are used as defined in the Credit Agreement.

 

(b)           The following terms have the meanings given to them in the UCC and terms used herein without definition that are defined in the UCC have the meanings given to them in the UCC (such meanings to be equally applicable to both the singular and plural forms of the terms defined):  “account”, “account debtor”, “as-extracted collateral”, “certificated security”, “chattel paper”, “commercial tort claim”, “commodity contract”, “deposit account”, “document” , “electronic chattel paper”, “equipment”, “farm products”, “fixture”, “general intangible”, “goods”, “health-care-insurance receivable”, “instruments”, “inventory”, “investment property”,

 

GUARANTY AND SECURITY AGREEMENT

CLUBCORP, INC.

 

1


 

“letter-of-credit right”, “proceeds”, “record”, “securities account”, “security”, “supporting obligation” and “tangible chattel paper”.

 

(c)           The following terms shall have the following meanings:

 

“After-Acquired Intellectual Property” means the Intellectual Property that has been at any time hereafter acquired.

 

“Agreement” means this Guaranty and Security Agreement.

 

“Applicable IP Office” means the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency within or outside the United States.

 

“Collateral” has the meaning specified in Section 3.1.

 

“Control Agreement” means each Deposit Account Control Agreement and Securities Account Control Agreement.

 

“Copyrights” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Law in or relating to copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith.

 

“Deposit Account Control Agreement” means, with respect to any deposit account, an agreement, in form and substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Administrative Agent.

 

“Guaranteed Obligations” has the meaning set forth in Section 2.1.

 

“Guarantor” means each Grantor other than the Borrower.

 

“Guaranty” means the guaranty of the Guaranteed Obligations made by the Guarantors as set forth in this Agreement.

 

“Intellectual Property” means all rights, title and interests in or relating to intellectual property and industrial property arising under any Law and all IP Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP Licenses.

 

“Internet Domain Names” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Law in or relating to Internet domain names.

 

“IP Ancillary Rights” means, with respect to any other Intellectual Property, as applicable, all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted

 

2


 

under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at Law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right.

 

“IP License” means all Contractual Obligations (and all related IP Ancillary Rights), whether written or oral, granting any right, title and interest in or relating to any Intellectual Property.

 

“Liabilities” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.

 

“Liquor License Rights” means any right, title or interest in, to or under any Liquor License, whether directly or indirectly held, including, without limitation, any rights owned, granted, approved or issued directly or indirectly by the applicable Governmental Authority issuing such license or held, leased or licensed or otherwise acquired from or through any party.

 

“Mexico Pledge Agreement” means each of (a) the Stock Pledge Agreement, dated as of the date hereof, by and between ClubCorp Mexico, Inc., as pledgor, Citicorp North America, Inc., acting solely in its capacity as Administrative Agent for its own benefit and on behalf and for the benefit of the Secured Parties, as pledgee, with the acknowledgement and consent of Promociones Turísticas Profesionales, S.A. de C.V., (b) the Stock Pledge Agreement, dated as of the date hereof, by and between ClubCorp Mexico, Inc., as pledgor, Citicorp North America, Inc., acting solely in its capacity as Administrative Agent, for its own benefit and on behalf and for the benefit of the Secured Parties, as pledgee, with the acknowledgement and consent of CG Inversiones, S.A. de C.V. and (c) the Stock Pledge Agreement, dated as of the date hereof, by and between ClubCorp Mexico, Inc., as pledgor, Citicorp North America, Inc., acting solely in its capacity as Administrative Agent, for its own benefit and on behalf and for the benefit of the Secured Parties, as pledgee, with the acknowledgement and consent of CCG Club de Golf, S.A. de C.V.

 

“Mexico Pledged Equity” means, collectively, (a) shares representing 65% of the corporate capital of Promociones Turísticas Profesionales, S.A. de C.V., (b) shares representing 65% of the corporate capital of CG Inversiones, S.A. de C.V. and (c) shares representing 65% of the corporate capital of CCG Club de Golf, S.A. de C.V., in each case, pledged by ClubCorp Mexico, Inc. under this Agreement and under the applicable Mexico Pledge Agreements.

 

“Patents” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Law in or relating to letters patent and applications therefor.

 

“Permitted Liens” means liens that are permitted pursuant to Section 7.01 of the Credit Agreement.

 

“Pledged Certificated Stock” means all certificated securities and any other Equity Interests of any Person evidenced by a certificate, instrument or other similar document

 

3


 

(as defined in the UCC), in each case owned by any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including all Equity Interests listed on Schedule 5.  Pledged Certificated Stock excludes any Excluded Assets and any Cash Equivalents that are not held in Control Accounts to the extent permitted by Section 6.13 of the Credit Agreement.

 

“Pledged Collateral” means, collectively, the Pledged Equity and the Pledged Debt.

 

“Pledged Debt” means all right, title and interest of any Grantor in instruments evidencing any Indebtedness owed to such Grantor or other obligations, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including all Indebtedness described on Schedule 5, issued by the obligors named therein.  Pledged Debt excludes instruments evidencing Indebtedness (a) with a principal amount of less than $250,000 individually and (b) with a principal amount of $250,000 or greater and less than $1,000,000 individually; provided, however, that to the extent the aggregate principal amount of all Indebtedness described in clause (b) above shall be equal to or greater than $5,000,000, the Grantors shall cause Indebtedness to become “Pledged Debt” hereunder until the aggregate principal amount of all such excluded Indebtedness pursuant to clause (b) is less than $5,000,000.

 

“Pledged Equity” means all Pledged Certificated Stock and all Pledged Uncertificated Stock.

 

“Pledged Investment Property” means any investment property of any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, other than any Pledged Equity or Pledged Debt.  Pledged Investment Property excludes (a) any Cash Equivalents that are not held in Control Accounts to the extent permitted by Section 6.13 of the Credit Agreement and (b) investment property (i) in an amount of less than $250,000 individually and (ii) in an amount of $250,000 or greater and less than $1,000,000 individually; provided, however, that to the extent the amount of all investment property described in clause (b)(ii) above shall be equal to or greater than $5,000,000, the Grantors shall cause investment property to become “Pledged Investment Property” hereunder until the aggregate amount of all such excluded investment property pursuant to clause (b)(ii) is less than $5,000,000.

 

“Pledged Uncertificated Stock” means any Equity Interests of any Person that is not Pledged Certificated Stock, including all right, title and interest of any Grantor as a limited or general partner in any partnership not constituting Pledged Certificated Stock or as a member of any limited liability company, all right, title and interest of any Grantor in, to and under any Organization Document of any partnership or limited liability company to which it is a party, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including in each case those interests set forth on Schedule 5, to the extent such interests are not certificated.  Pledged Uncertificated Stock excludes any Excluded Assets and any Cash Equivalents that are not held in Control Accounts to the extent permitted by Section 6.13 of the Credit Agreement.

 

“Secured Obligations” has the meaning specified in Section 3.2.

 

“Securities Account Control Agreement” means, with respect to any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to the Administrative Agent, among the Administrative Agent, the

 

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financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Administrative Agent.

 

“Security” means all Equity Interests, voting trust certificates, bonds, debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other rights to acquire, any Security.

 

“Software” means (a) all computer programs, including source code and object code versions, (b) all data, databases and compilations of data, whether machine readable or otherwise, and (c) all documentation, training materials and configurations related to any of the foregoing.

 

“Trademarks” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Law in or relating to trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each case, all goodwill associated therewith, all registrations and recordations thereof and all applications in connection therewith.

 

“Trade Secrets” means all right, title and interest (and all related IP Ancillary Rights) arising under any Law in or relating to trade secrets.

 

“Vehicles” means all vehicles covered by a certificate of title Law of any state.

 

Section 1.2.           Certain Other Terms.  (a) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.  The terms “herein”, “hereof” and similar terms refer to this Agreement as a whole and not to any particular Article, Section or clause in this Agreement.  References herein to an Annex, Schedule, Article, Section or clause refer to the appropriate Annex or Schedule to, or Article, Section or clause in this Agreement.  Where the context requires, provisions relating to any Collateral when used in relation to a Grantor shall refer to such Grantor’s Collateral or any relevant part thereof.

 

(b)           Section 1.02 (Other Interpretive Provisions) of the Credit Agreement is applicable to this Agreement as and to the extent set forth therein.

 

ARTICLE II

 

GUARANTY

 

Section 2.1.           Guaranty.  To induce the Lenders to make the Loans and the L/C Issuers to issue Letters of Credit, each Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance with any Loan Document, of all the Obligations of the Borrower whether existing on the date hereof or hereinafter incurred or created (the “Guaranteed Obligations”).  This Guaranty by each Guarantor hereunder constitutes a guaranty of payment and not of collection.

 

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Section 2.2.           Limitation of Guaranty.  Any term or provision of this Guaranty or any other Loan Document to the contrary notwithstanding, the maximum aggregate amount for which any Subsidiary Guarantor shall be liable hereunder shall not exceed the maximum amount for which such Subsidiary Guarantor can be liable without rendering this Guaranty or any other Loan Document, as it relates to such Subsidiary Guarantor, subject to avoidance under applicable Laws relating to fraudulent conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act and Section 548 of title 11 of the United States Code or any applicable provisions of comparable Laws) (collectively, “Fraudulent Transfer Laws”).  Any analysis of the provisions of this Guaranty for purposes of Fraudulent Transfer Laws shall take into account the right of contribution established in Section 2.3 and, for purposes of such analysis, give effect to any discharge of intercompany debt as a result of any payment made under the Guaranty.

 

Section 2.3.           Contribution.  To the extent that any Subsidiary Guarantor shall be required hereunder to pay any portion of any Guaranteed Obligation exceeding the greater of (a) the amount of the economic benefit actually received by such Subsidiary Guarantor from the Loans and other Obligations and (b) the amount such Subsidiary Guarantor would otherwise have paid if such Subsidiary Guarantor had paid the aggregate amount of the Guaranteed Obligations (excluding the amount thereof repaid by the Borrower and Holdings) in the same proportion as such Subsidiary Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the Subsidiary Guarantors on such date, then such Guarantor shall be reimbursed by such other Subsidiary Guarantors for the amount of such excess, pro rata, based on the respective net worth of such other Subsidiary Guarantors on such date.

 

Section 2.4.           Authorization; Other Agreements.  The Secured Parties are hereby authorized, without notice to or demand upon any Guarantor and without discharging or otherwise affecting the obligations of any Guarantor hereunder and without incurring any liability hereunder, from time to time, to do each of the following:

 

(a)           (i) modify, amend, supplement or otherwise change, (ii) accelerate or otherwise change the time of payment or (iii) waive or otherwise consent to noncompliance with, any Guaranteed Obligation or any Loan Document;

 

(b)           apply to the Guaranteed Obligations any sums, by whomever paid or however realized, to any Guaranteed Obligation in such order as provided in the Loan Documents;

 

(c)           refund at any time any payment received by any Secured Party in respect of any Guaranteed Obligation;

 

(d)           (i) Dispose of, exchange, enforce, waive, substitute, liquidate, terminate, release, abandon, fail to perfect, subordinate, accept, substitute, surrender, exchange, affect, impair or otherwise alter or release any Collateral for any Guaranteed Obligation or any other guaranty therefor in any manner, (ii) receive, take and hold additional Collateral to secure any Guaranteed Obligation, (iii) add, release or substitute any one or more other Guarantors, makers or endorsers of any Guaranteed Obligation or any part thereof and (iv) otherwise deal in any manner with the Borrower and any other Guarantor, maker or endorser of any Guaranteed Obligation or any part thereof; and

 

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(e)           settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations.

 

Section 2.5.           Guaranty Absolute and Unconditional.  Each Guarantor hereby waives and agrees not to assert any defense, whether arising in connection with or in respect of any of the following or otherwise, and hereby agrees that its obligations under this Guaranty are irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected by any of the following (which may not be pleaded and evidence of which may not be introduced in any proceeding with respect to this Guaranty, in each case except as otherwise agreed in writing by the Administrative Agent):

 

(a)           the invalidity or unenforceability of any obligation of the Borrower or any other Guarantor under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver thereto), or any security for, or other guaranty of, any Guaranteed Obligation or any part thereof, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any part thereof;

 

(b)           the absence of (i) any attempt to collect any Guaranteed Obligation or any part thereof from the Borrower or any other Guarantor or other action to enforce the same or (ii) any action to enforce any Loan Document or any Lien thereunder;

 

(c)           the failure by any Person to take any steps to perfect and maintain any Lien on, or to preserve any rights with respect to, any Collateral;

 

(d)           any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation or dissolution by or against the Borrower, any other Guarantor or any of Holdings’ other Subsidiaries or any procedure, agreement, order, stipulation, election, action or omission thereunder, including any discharge or disallowance of, or bar or stay against collecting, any Guaranteed Obligation (or any interest thereon) in or as a result of any such proceeding;

 

(e)           any foreclosure, whether or not through judicial sale, and any other Disposition of any Collateral or any election following the occurrence of an Event of Default by any Secured Party to proceed separately against any Collateral in accordance with such Secured Party’s rights under any applicable Laws; or

 

(f)            any other defense, setoff, counterclaim or any other circumstance that might otherwise constitute a legal or equitable discharge of the Borrower, any other Guarantor or any of Holdings’ other Subsidiaries, in each case other than the payment in full of the Guaranteed Obligations.

 

Section 2.6.           Waivers.  Each Guarantor hereby unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder including any of the following:  (a) any demand for payment or performance and protest and notice of protest, (b) any notice of acceptance, (c) any presentment, demand, protest or further notice or other requirements of any kind with respect to any Guaranteed Obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable and (d) any other notice in respect of any Guaranteed Obligation or any part thereof, and any defense arising by reason of any disability or other defense of the Borrower or any other Guarantor.  Each Guarantor further

 

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unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against the Borrower or any other Guarantor by reason of any Loan Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against any other Loan Party or set off any of its obligations to such other Loan Party against obligations of such Loan Party to such Guarantor.  No obligation of any Guarantor hereunder shall be discharged other than by complete performance.

 

Section 2.7.           Reliance.  Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, each other Guarantor and any other guarantor, maker or endorser of any Guaranteed Obligation or any part thereof, and of all other circumstances bearing upon the risk of nonpayment of any Guaranteed Obligation or any part thereof that diligent inquiry would reveal, and each Guarantor hereby agrees that no Secured Party shall have any duty to advise any Guarantor of information known to it regarding such condition or any such circumstances.  In the event any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Guarantor, such Secured Party shall be under no obligation to (a) undertake any investigation not a part of its regular business routine, (b) disclose any information that such Secured Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) make any future disclosures of such information or any other information to any Guarantor.

 

ARTICLE III

 

GRANT OF SECURITY INTEREST

 

Section 3.1.           Collateral.  For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “Collateral”:

 

(a)           all accounts, chattel paper, deposit accounts, documents, equipment, general intangibles, instruments, inventory, investment property and any supporting obligations related thereto;

 

(b)           the commercial tort claims described on Schedule 1 and on any supplement thereto received by the Administrative Agent pursuant to Section 5.9;

 

(c)           all books and records pertaining to the other property described in this Section 3.1;

 

(d)           all property of the type described in this Section 3.1 of any Grantor held by any Secured Party, including all property of every description, in the custody of or in transit to such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including, but not limited to, cash;

 

(e)           all other goods (including but not limited to fixtures) and personal property of such Grantor, whether tangible or intangible and wherever located;

 

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(f)            to the extent not included as “general intangibles” in clause (a) above, all Liquor License Rights, whether now owned or held or hereafter acquired or held by a Grantor, including. without limitation, all Liquor Licenses and the right to receive monies, proceeds, or other consideration in connection with the sale, assignment, transfer or other disposition of any Liquor Licenses or any goodwill or other intangible rights or benefits associated therewith, including, without limitation, all rights of each Grantor to (i) transfer, assign or otherwise dispose of its right, title and interest, if any, under or in respect of such Liquor Licenses, (ii) exercise any rights, demands and remedies against the lessor, licensor and other parties thereto, and (iii) receive proceeds of any insurance, indemnities, warranties, guaranties or claims for damages in connection therewith; and

 

(g)           to the extent not otherwise included, all proceeds of the foregoing;

 

provided, however, that “Collateral” shall not include any Excluded Assets; and provided, further, that if and when any property shall cease to be an Excluded Asset, such property shall be deemed at all times from and after the date hereof to constitute Collateral (until such time as such Collateral is Disposed of in accordance with the Loan Documents or becomes an “Excluded Asset”).

 

Section 3.2.        Grant of Security Interest in Collateral.  Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of such Grantor (the “Secured Obligations”), hereby mortgages, pledges and hypothecates to the Administrative Agent for the benefit of the Secured Parties, and grants to the Administrative Agent for the benefit of the Secured Parties, a Lien on and security interest in, all of its right, title and interest in, to and under the Collateral of such Grantor.

 

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES

 

To induce the Lenders, the L/C Issuer and the Administrative Agent to enter into the Loan Documents, each Grantor hereby represents and warrants each of the following to the Administrative Agent, the Lenders, the L/C Issuer and the other Secured Parties:

 

Section 4.1.           Title; No Other Liens.  Except for the Lien granted to the Administrative Agent pursuant to this Agreement and other Permitted Liens (except for those Permitted Liens not permitted to exist on any Collateral) under any Loan Document (including Section 4.2), such Grantor owns each item of the Collateral free and clear of any and all Liens or claims of others.  Such Grantor (a) is the record and beneficial owner of the Collateral pledged by it hereunder constituting instruments or certificates and (b) has rights in or the power to transfer each other item of Collateral in which a Lien is granted by it hereunder, free and clear of any other Lien.

 

Section 4.2.           Perfection and Priority.  The security interest granted pursuant to this Agreement constitutes a valid and continuing perfected security interest in favor of the Administrative Agent in all Collateral subject, in the case of the following Collateral, to the occurrence of the following:  (i) in the case of all Collateral in which a security interest may be perfected by filing a financing statement under the UCC, the completion of the filings and other

 

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actions specified on Schedule 2 (which, in the case of all filings and other documents referred to on such schedule, have been delivered to the Administrative Agent in completed and duly authorized form), (ii) with respect to any Deposit Account, Securities Account or Commodity Account, the execution of Control Agreements, (iii) in the case of all Copyrights, Trademarks and Patents for which UCC filings are insufficient, all appropriate filings having been made with the United States Copyright Office or the United States Patent and Trademark Office, as applicable (which, in the case of all filings, have been delivered to the Administrative Agent in completed and duly authorized form), (iv) in the case of letter-of-credit rights that are not supporting obligations of Collateral, the execution of a Contractual Obligation granting control to the Administrative Agent over such letter-of-credit rights, (v) in the case of electronic chattel paper, the completion of all steps necessary to grant control to the Administrative Agent over such electronic chattel paper and (vi) in the case of Excluded Perfection Assets, the completion of the steps necessary to perfect the grant of the security interest made hereunder (including the actions required under Section 5.1(e)).  Such security interest shall be prior to all other Liens on the Collateral except for Permitted Prior Liens (except that to the extent any such Permitted Prior Liens encumber Equity Interests, such Permitted Prior Liens shall be nonconsensual) having priority over the Administrative Agent’s Lien by operation of Law or unless otherwise permitted by any Loan Document upon (i) in the case of all Pledged Certificated Stock (other than Pledged Certificated Stock of an Unrestricted Subsidiary), Pledged Debt and Pledged Investment Property, the delivery thereof to the Administrative Agent of such Pledged Certificated Stock, Pledged Debt and Pledged Investment Property consisting of instruments and certificates, in each case properly endorsed for transfer to the Administrative Agent or in blank, (ii) in the case of all Pledged Investment Property not in certificated form, the execution of Control Agreements with respect to such investment property and (iii) in the case of all other instruments and tangible chattel paper that are not Pledged Certificated Stock, Pledged Debt or Pledged Investment Property, the delivery thereof to the Administrative Agent of such instruments and tangible chattel paper.  Except as set forth in this Section 4.2, all actions by each Grantor necessary or desirable to protect and perfect the Lien granted hereunder on the Collateral have been duly taken.

 

Section 4.3.           Jurisdiction of Organization; Chief Executive Office.  Each of Holdings and its Restricted Subsidiaries’ jurisdiction of organization, legal name and organizational identification number, if any, and the location of its chief executive office or sole place of business, in each case as of the date hereof, is specified on Schedule 3 and such Schedule 3 also lists all jurisdictions of incorporation, legal names and locations of each of Holdings and its Restricted Subsidiaries’ chief executive office or sole place of business for the five years preceding the date hereof.

 

Section 4.4.           Locations of Inventory, Equipment and Books and Records.  On the date hereof, each Grantor’s inventory and equipment (other than inventory or equipment in transit) and books and records concerning the Collateral are kept at the locations listed on Schedule 4.

 

Section 4.5.           Pledged Collateral.  (a) The Pledged Equity pledged by such Grantor hereunder (a) is listed on Schedule 5 (except for Pledged Equity of Dormant Subsidiaries and Excluded Subsidiaries, which is not listed therein) and constitutes that percentage of the issued and outstanding equity of all classes of each issuer thereof as set forth on Schedule 5, (b) has been duly authorized, validly issued and is fully paid and nonassessable (other than Pledged Equity in

 

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limited liability companies and partnerships) and (c) constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms.

 

(b)                                 As of the Closing Date, all Pledged Collateral (other than Pledged Uncertificated Stock or Pledged Certificated Stock of any Unrestricted Subsidiary) and all Pledged Investment Property consisting of instruments and certificates has been delivered to the Administrative Agent in accordance with Section 5.3(a).

 

(c)                                  Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall be entitled to exercise all of the rights of the Grantor granting the security interest in any Pledged Equity, and a transferee or assignee of such Pledged Equity shall become a holder of such Pledged Equity to the same extent as such Grantor and be entitled to participate in the management of the issuer of such Pledged Equity and, upon the transfer of the entire interest of such Grantor, such Grantor shall, by operation of Law, cease to be a holder of such Pledged Equity.

 

Section 4.6.                                Instruments and Tangible Chattel Paper Formerly Accounts.  No amount payable to such Grantor under or in connection with any account is evidenced by any instrument or tangible chattel paper that has not been delivered to the Administrative Agent, properly endorsed for transfer, to the extent delivery is required by Section 5.6(a).

 

Section 4.7.                                Intellectual Property.  (a) Schedule 6 sets forth a true and complete list of the following Intellectual Property that each Grantor owns, licenses or otherwise has the right to use:  (i) Intellectual Property that is registered or subject to applications for registration, (ii) Internet Domain Names and (iii) Material Intellectual Property and material Software, separately identifying that which is owned and licensed to such Grantor and including for each of the foregoing items (1) the owner, (2) the title, (3) the jurisdiction in which such item has been registered or otherwise arises or in which an application for registration has been filed, (4) as applicable, the registration or application number and registration or application date and (5) any IP Licenses or other rights (including franchises) granted by the Grantor with respect thereto.

 

(b)                                 On the Closing Date, all Material Intellectual Property owned by Holdings and each of its Restricted Subsidiaries is valid, in full force and effect, subsisting, unexpired and enforceable, and no Material Intellectual Property has been abandoned.  No breach or default of any material IP License shall be caused by any of the following, and none of the following shall limit or impair the ownership, use, validity or enforceability of, or any rights of Holdings or any of its Restricted Subsidiaries in, any Material Intellectual Property:  (i) the consummation of the transactions contemplated by any Loan Document or (ii) any holding, decision, judgment or order rendered by any Governmental Authority.  There are no pending (or, to the knowledge of Holdings or any of its Restricted Subsidiaries, threatened) actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes challenging the ownership, use, validity, enforceability of, Holdings or any of its Restricted Subsidiaries’ rights in, any Material Intellectual Property of Holdings or any of its Restricted Subsidiaries.  To the knowledge of Holdings and each of its Restricted Subsidiaries, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any Intellectual Property of Holdings or any of its Restricted Subsidiaries.  Neither Holdings nor any of its Restricted Subsidiaries, or to the knowledge of Holdings or any of its Restricted Subsidiaries, any other party thereto, are in material breach of or default under any material IP License.

 

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Section 4.8.                                Commercial Tort Claims.  The only commercial tort claims of any Grantor existing on the date hereof (regardless of whether the amount, defendant or other material facts can be determined and regardless of whether such commercial tort claim has been asserted, threatened or has otherwise been made known to the obligee thereof or whether litigation has been commenced for such claims) are those listed on Schedule 1, which sets forth such information separately for each Grantor.

 

Section 4.9.                                Deposit Accounts; Securities Accounts.  The only Deposit Accounts, Securities Accounts and Commodity Accounts that are maintained by any Grantor on the date hereof are those listed on Schedule 7, which schedule sets forth such information separately for each Grantor.

 

Section 4.10.                         Specific Collateral.  None of the Collateral is, or is proceeds or products of, any of the following: (a) farm products, (b) as-extracted collateral, (c) health-care-insurance receivables or (d) timber to be cut.

 

Section 4.11.                         Enforcement.  No Permit, notice to or filing with any Governmental Authority or any other Person or any consent from any Person is required for the exercise by the Administrative Agent of its rights (including voting rights) provided for in this Agreement or the enforcement of remedies in respect of the Collateral pursuant to this Agreement, including the transfer of any Collateral, except as may be required in connection with the disposition of any portion of the Pledged Collateral by (a) Laws affecting the offering and sale of securities generally, (b) any approvals that may be required to be obtained from any bailees or landlords to collect the Collateral or (c) any approvals that may be required to be obtained from any Governmental Authority in connection with any Liquor License Rights.

 

Section 4.12.                         Representations and Warranties in the Credit Agreement.  The representations and warranties as to Holdings and its Subsidiaries made by the Borrower and Holdings in Article 5 (Representations and Warranties) of the Credit Agreement are true and correct on each date as required by Section 4.02(a) of the Credit Agreement.

 

ARTICLE V

 

COVENANTS

 

So long as (a) any Lender shall have any Commitment, (b) any Loan or other Obligation that is accrued and payable (and not contingent or inchoate) shall remain unpaid or unsatisfied or (c) any Letter of Credit shall remain outstanding, each Grantor agrees with the Administrative Agent to the following:

 

Section 5.1.                                Maintenance of Perfected Security Interest; Further Documentation and Consents.  (a) Generally.  Neither Holdings nor any Restricted Subsidiary shall (i) use or permit any Collateral to be used unlawfully or in violation of any provision of any Loan Document, any Laws or any policy of insurance covering the Collateral or (ii) enter into any Contractual Obligation or undertaking restricting the right or ability of Holdings or any of its Restricted Subsidiaries or the Administrative Agent to Dispose of any Collateral if such restriction would have a Material Adverse Effect.

 

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(b)                                 Holdings and each of its Restricted Subsidiaries shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 4.2 and shall defend such security interest and such priority against the claims and demands of all Persons.

 

(c)                                  No later than five (5) Business Days after the delivery of the financial statements referred to in Section 6.01(a) of the Credit Agreement, or upon the Administrative Agent’s reasonable request, Holdings and its Restricted Subsidiaries shall furnish to the Administrative Agent statements and schedules further identifying and describing the Collateral (including updated schedules as to locations of Collateral and acquisition of Intellectual Property or real property) and such other documents in connection with the Collateral, all in reasonable detail and in form and substance satisfactory to the Administrative Agent.

 

(d)                                 At any time and from time to time, upon the written request of the Administrative Agent, Holdings and each of its Restricted Subsidiaries shall, for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, (i) promptly and duly execute and deliver, and have recorded, such further documents, including an authorization to file (or, as applicable, the filing) of any financing statement or amendment under the UCC (or other filings under similar Laws) in effect in any jurisdiction with respect to the security interest created hereby and (ii) take such further action as the Administrative Agent may reasonably request, including (A) using its commercially reasonable efforts to (x) secure all approvals necessary or desirable for the assignment to or for the benefit of the Administrative Agent of any Contractual Obligation, including any IP License, held by any Grantor and (y) enforce the security interests granted hereunder and (B) executing and delivering any Control Agreements with respect to Deposit Accounts, Securities Accounts and Commodities Accounts.

 

(e)                                  Upon the occurrence and during the continuance of a Default or an Event of Default, if requested by the Administrative Agent, each Grantor shall arrange for the Administrative Agent’s first priority security interest to be noted on the certificate of title of each Vehicle and shall file any other necessary documentation in each jurisdiction that the Administrative Agent shall deem advisable to perfect its security interests in any Vehicle.

 

(f)                                    To ensure that any property acquired after the date of the Agreement forming part of the Excluded Assets described in clause (a)(ii) of the definition of “Excluded Assets” becomes part of the Collateral, upon the request of the Administrative Agent, each Grantor shall use its commercially reasonable efforts to obtain any required consents from any Person other than Holdings and its Affiliates with respect to any after-acquired Permit or license that requires such consent as a condition to the creation by such Grantor of a Lien on any right, title or interest in such Permit, license or Contractual Obligation or any Equity Interests related thereto.

 

Section 5.2.                                Changes in Locations, Name, Etc.  Except upon 30 days’ prior written notice to the Administrative Agent and delivery to the Administrative Agent of (a) all documents reasonably requested by the Administrative Agent to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, a written supplement to Schedule 4 showing any additional locations at which inventory or equipment shall be kept, such Grantor shall not do any of the following:

 

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(i)                                     except as may be permitted by Section 7.04 of the Credit Agreement, permit any inventory or equipment to be kept at a location other than those listed on Schedule 4, except for inventory or equipment in transit;

 

(ii)                                  except as may be permitted by Section 7.04 of the Credit Agreement, permit, change its jurisdiction of organization or its location, in each case from that referred to in Section 4.3; or

 

(iii)                               change its legal name or organizational identification number, if any, or corporation, limited liability company, partnership or other organizational structure to such an extent that any financing statement filed in connection with this Agreement would become misleading.

 

Section 5.3.                                Pledged Collateral.  (a) Delivery of Pledged Collateral.  Such Grantor shall (i) deliver to the Administrative Agent, in suitable form for transfer and in form and substance satisfactory to the Administrative Agent, (A) all Pledged Certificated Stock (other than Pledged Certificated Stock of any Unrestricted Subsidiary), (B) all Pledged Debt and (C) all certificates and instruments evidencing Pledged Investment Property and (ii) maintain all other Pledged Investment Property in a Control Account.

 

If such Grantor is a partnership or limited liability company that has not issued Pledged Certificated Stock, (i) such Grantor confirms that the terms of the Equity Interests issued by it provide that each such Equity Interest is not a “security” with the meaning of Article 8 of the UCC, (ii) agrees that it will take no action to cause or permit any such Equity Interest to constitute a “security” under Article 8 of the UCC and (iii) agrees that such Equity Interests will at no time be evidenced by a “security certificate” (as defined in Section 8-102 of the UCC).

 

If such Grantor directly owns Pledged Uncertificated Stock of an Unrestricted Subsidiary that is a partnership or a limited liability company, (i) such Grantor confirms that the terms of the Equity Interests issued by such Unrestricted Subsidiary provide that each such Equity Interest is not a “security” with the meaning of Article 8 of the UCC, (ii) agrees that it will not permit such Unrestricted Subsidiary to take any action to cause or permit any such Equity Interest issued by such Unrestricted Subsidiary to constitute a “security” under Article 8 of the UCC and (iii) agrees that it will not allow such Unrestricted Subsidiary to evidence such Equity Interests by a “security certificate” (as defined in Section 8-102 of the UCC).

 

(b)                                 Event of Default.  Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the right, at any time in its discretion and without notice to the Grantor, to (i) transfer to or to register in its name or in the name of its nominees any Pledged Collateral or any Pledged Investment Property, (ii) exchange any certificate or instrument representing or evidencing any Pledged Collateral or any Pledged Investment Property for certificates or instruments of smaller or larger denominations and (iii) require any Grantor to take such steps as may be necessary or desirable to perfect the Administrative Agent’s security interest granted under this Agreement in any Excluded Perfection Assets.

 

(c)                                  Cash Distributions with respect to Pledged Collateral.  Except as provided in Article VI, such Grantor shall be entitled to receive all cash distributions paid in respect of the Pledged Collateral.

 

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(d)                                 Voting Rights.  Except as provided in Article VI, such Grantor shall be entitled to exercise all voting, consent and corporate, partnership, limited liability company and similar rights with respect to the Pledged Collateral; provided, however, that no vote shall be cast, consent given or right exercised or other action taken by such Grantor that would impair the Collateral or be inconsistent with or result in any violation of any provision of any Loan Document.

 

Section 5.4.                                Accounts.  (a) Such Grantor shall not, other than in the ordinary course of business, (i) grant any extension of the time of payment of any account, (ii) compromise or settle any account for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any account, (iv) allow any credit or discount on any account or (v) amend, supplement or modify any account in any manner that could adversely affect the value thereof.

 

(b)                                 The Administrative Agent shall have the right to make test verifications of the Accounts in any manner and through any medium that it reasonably considers advisable, and such Grantor shall furnish all such assistance and information as the Administrative Agent may reasonably require in connection therewith.  At any time and from time to time, upon the Administrative Agent’s request, such Grantor shall cause independent public accountants or others satisfactory to the Administrative Agent to furnish to the Administrative Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the accounts; provided, however, that unless a Default or an Event of Default shall have occurred and be continuing, the Administrative Agent shall request no more than one of each such report during any calendar year.

 

Section 5.5.                                Commodity Contracts.  Such Grantor shall not have any commodity contract other than with a Person approved by the Administrative Agent and subject to a Control Agreement.

 

Section 5.6.                                Delivery of Instruments and Tangible Chattel Paper and Control of Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper.  (a) If any amount payable under or in connection with any Collateral owned by such Grantor shall be or become evidenced by an instrument or tangible chattel paper other than such instrument delivered in accordance with Section 5.3(a) and in the possession of the Administrative Agent, such Grantor shall mark all such instruments and tangible chattel paper with the following legend:  “This writing and the obligations evidenced or secured hereby are subject to the security interest of Citicorp North America, Inc., as Administrative Agent” and, at the request of the Administrative Agent, shall immediately deliver such instrument or tangible chattel paper to the Administrative Agent, duly indorsed in a manner satisfactory to the Administrative Agent.  The foregoing shall not apply to instruments and tangible chattel paper evidencing an amount payable of (i) less than $250,000 individually and (ii) $250,000 or greater and less than $1,000,000 individually; provided, however, that to the extent the amount of all instruments and tangible chattel paper described in clause (ii) above shall be equal to or greater than $5,000,000, the Grantors shall cause instruments and tangible chattel paper to be delivered to the Administrative Agent hereunder until the aggregate amount of all such excluded instruments and tangible chattel paper pursuant to clause (ii) is less than $5,000,000.

 

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(b)                                 Such Grantor shall not grant “control” (within the meaning of such term under Article 9-106 of the UCC) over any investment property to any Person other than the Administrative Agent.

 

(c)                                  If such Grantor is or becomes the beneficiary of letters of credit that are not supporting obligations with respect to any Collateral, such Grantor shall promptly, and in any event within 2 Business Days after becoming a beneficiary, notify the Administrative Agent thereof and enter into a Contractual Obligation with the Administrative Agent, the issuers of such letters of credit or any nominated person with respect to the letter-of-credit rights under such letters of credit.  Such Contractual Obligation shall assign such letter-of-credit rights to the Administrative Agent and such assignment shall be sufficient to grant control for the purposes of Section 9-107 of the UCC (or any similar section under any equivalent UCC).  Such Contractual Obligation shall also direct all payments thereunder to a Cash Collateral Account.  The provisions of the Contractual Obligation shall be in form and substance reasonably satisfactory to the Administrative Agent.  The foregoing shall not apply to letter-of-credit rights in respect of letters of credit with a face amount of (i) less than $250,000 individually and (ii) $250,000 or greater and less than $1,000,000 individually; provided, however, that to the extent the letter-of-credit rights in respect of letters of credit excluded in clause (ii) above shall be equal to or greater than $5,000,000, the Grantors shall cause an assignment of such letter-of-credit rights to the Administrative Agent hereunder until the aggregate face amount of all such excluded letters of credit pursuant to clause (ii) is less than $5,000,000.

 

(d)                                 If any amount payable under or in connection with any Collateral owned by such Grantor shall be or become evidenced by electronic chattel paper, such Grantor shall take all steps necessary to grant the Administrative Agent control of all such electronic chattel paper for the purposes of Section 9-105 of the UCC (or any similar section under any equivalent UCC) and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.  The foregoing shall not apply to electronic chattel paper evidencing an amount payable of (i) less than $250,000 individually and (ii) $250,000 or greater and less than $1,000,000 individually; provided, however, that to the extent the amount of all electronic chattel paper described in clause (ii) above shall be equal to or greater than $5,000,000, the Grantors shall grant control of electronic chattel paper to the Administrative Agent hereunder until the aggregate amount of all such excluded electronic chattel paper pursuant to clause (ii) is less than $5,000,000.

 

Section 5.7.                                Intellectual Property.  (a) Within 30 days of the end of any fiscal quarter during which any change occurred to Schedule 6 for such Grantor, such Grantor shall provide the Administrative Agent notification thereof and the short-form intellectual property agreements and assignments as described in this Section 5.7 and other documents that the Administrative Agent reasonably requests with respect thereto.

 

(b)                                 Such Grantor shall (and shall cause all its licensees to) (i) (1) continue to use each Trademark included in the Material Intellectual Property in order to maintain such Trademark in full force and effect with respect to each class of goods for which such Trademark is currently used, free from any claim of abandonment for non-use, (2) maintain at least the same standards of quality of products and services offered under such Trademark as are currently maintained, (3) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable Laws, (4) not adopt or use any other Trademark that is confusingly similar or a colorable imitation of such Trademark unless the Administrative Agent

 

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shall obtain a perfected security interest in such other Trademark pursuant to this Agreement and (ii) not do any act or omit to do any act whereby (w) such Trademark (or any goodwill associated therewith) may become destroyed, invalidated, impaired or harmed in any way, (x) any Patent included in the Material Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, (y) any portion of the Copyrights included in the Material Intellectual Property may become invalidated, otherwise impaired or fall into the public domain or (z) any Trade Secret that is Material Intellectual Property may become publicly available or otherwise unprotectable.

 

(c)                                  Such Grantor shall notify the Administrative Agent immediately if it knows, or has reason to know, that any application or registration relating to any Material Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, or of any adverse determination or development regarding the validity or enforceability or such Grantor’s ownership of, interest in, right to use, register, own or maintain any Material Intellectual Property (including the institution of, or any such determination or development in, any proceeding relating to the foregoing in any Applicable IP Office).  Such Grantor shall take all actions that are necessary or reasonably requested by the Administrative Agent to maintain and pursue each application (and to obtain the relevant registration or recordation) and to maintain each registration and recordation included in the Material Intellectual Property.

 

(d)                                 In the event that any Material Intellectual Property of such Grantor is or has been infringed, misappropriated, violated, diluted or otherwise impaired by a third party, such Grantor shall take such action as the Administrative Agent reasonably deems necessary or desirable under the circumstances in response thereto, including promptly bringing suit and recovering all damages therefor.

 

(e)                                  Such Grantor shall (i) execute and deliver to the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent and suitable for filing in the Applicable IP Office, the short-form intellectual property security agreements in the form attached hereto as Annex 3 for all Copyrights, Trademarks, Patents and IP Licenses of such Grantor and (ii) upon the occurrence and during the continuance of an Event of Default, record with the appropriate Internet domain name registrar a duly executed form of assignment for all Internet Domain Names of such Grantor (together with appropriate supporting documentation as may be requested by the Administrative Agent).

 

Section 5.8.                                Notices.  Such Grantor shall promptly notify the Administrative Agent in writing of its acquisition of any interest hereafter in property that is of a type where a security interest or lien must be or may be registered, recorded or filed under, or notice thereof given under, any federal statute or regulation; provided, however, that no such notice need be given to the extent that such property has a fair market value of (a) less than $250,000 individually or (b) $250,000 or greater and less than $1,000,000 individually; provided, further, that to the extent that the fair market value of property described in clause (b) above shall be equal to or greater than $5,000,000, the Grantors shall give notice of such property to the Administrative Agent hereunder until the aggregate amount of all such excluded property under clause (b) is less than $5,000,000.

 

Section 5.9.                                Notice of Commercial Tort Claims.  Such Grantor agrees that, if it shall acquire any interest in any commercial tort claim (whether from another Person or because such

 

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commercial tort claim shall have come into existence), (a) such Grantor shall, promptly upon such acquisition, deliver to the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent, a notice of the existence and nature of such commercial tort claim and a supplement to Schedule 1 containing a specific description of such commercial tort claim, (b) Section 3.1 shall apply to such commercial tort claim and (c) such Grantor shall execute and deliver to the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent, any document, and take all other action, deemed by the Administrative Agent to be reasonably necessary or desirable for the Administrative Agent to obtain, on behalf of the Lenders, a perfected security interest having at least the priority set forth in Section 4.2 in all such commercial tort claims.  Any supplement to Schedule 1 delivered pursuant to this Section 5.9 shall, after the receipt thereof by the Administrative Agent, become part of Schedule 1 for all purposes hereunder other than in respect of representations and warranties made prior to the date of such receipt.  The foregoing shall not apply to commercial tort claims valued at (i) less than $250,000 individually and (ii) $250,000 or greater and less than $1,000,000 individually; provided, however, that to the extent the aggregate amount of all commercial tort claims described in clause (ii) above shall be equal to or greater than $5,000,000, the Grantors shall cause the perfection of the Administrative Agent’s security interest in such commercial tort claims as set forth above until the aggregate amount of all such excluded commercial tort claims pursuant to clause (ii) is less than $5,000,000.

 

Section 5.10.                         Compliance with Credit Agreement.  Such Grantor agrees to comply with all covenants and other provisions applicable to it under the Credit Agreement, including, without limitation, Sections 3.01 (Taxes), 10.04 (Attorney Costs, Expenses and Taxes) and 10.05 (Indemnification by the Borrower) of the Credit Agreement and agrees to the same submission to jurisdiction as that agreed to by Holdings and the Borrower in the Credit Agreement.

 

ARTICLE VI

 

REMEDIAL PROVISIONS

 

Section 6.1.                                Code and Other Remedies.  (a) UCC Remedies.  Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to any Secured Obligation, all rights and remedies of a secured party under the UCC or any other applicable Law.

 

(b)                                 Disposition of Collateral.  Without limiting the generality of the foregoing, the Administrative Agent may, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by Law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), upon the occurrence and during the continuance of an Event of Default, (i) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice or opportunity for a hearing on the Administrative Agent’s claim or action, (ii) collect, receive, appropriate and realize upon any Collateral and (iii) Dispose of, grant option or options to purchase and deliver any Collateral (enter into Contractual Obligations to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it

 

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may deem best, for cash or on credit or for future delivery without assumption of any credit risk.  The Administrative Agent shall have the right, upon any such public sale or sales and, to the extent permitted by the UCC and other applicable Laws, upon any such private sale, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of any Grantor, which right or equity is hereby waived and released.

 

(c)                                  Management of the Collateral.  Each Grantor further agrees, that, upon the occurrence and during the continuance of any Event of Default, (i) at the Administrative Agent’s request, it shall assemble the Collateral and make it available to the Administrative Agent at places that the Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere, (ii) without limiting the foregoing, the Administrative Agent also has the right to require that each Grantor store and keep any Collateral pending further action by the Administrative Agent and, while any such Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain such Collateral in good condition, (iii) until the Administrative Agent is able to Dispose of any Collateral, the Administrative Agent shall have the right to hold or use such Collateral to the extent that it deems necessary or desirable for the purpose of preserving the Collateral or its value or for any other purpose deemed necessary or desirable by the Administrative Agent and (iv) the Administrative Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of any Collateral and to enforce any of the Administrative Agent’s remedies (for the benefit of the Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.  The Administrative Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to any Collateral while such Collateral is in the possession of the Administrative Agent.

 

(d)                                 Application of Proceeds.  The Administrative Agent shall apply the cash proceeds of any action taken by it pursuant to this Section 6.1, after deducting all costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any Collateral or in any way relating to the Collateral or the rights of the Administrative Agent and any other Secured Party hereunder, including attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, as set forth in the Credit Agreement, and only after such application and after the payment by the Administrative Agent of any other amount required by any Laws, need the Administrative Agent account for the surplus, if any, to any Grantor.

 

(e)                                  Direct Obligation.  Neither the Administrative Agent nor any other Secured Party shall be required to make any demand upon, or pursue or exhaust any right or remedy against, any Grantor, any other Loan Party or any other Person with respect to the payment of the Obligations or to pursue or exhaust any right or remedy with respect to any Collateral therefor or any direct or indirect guaranty thereof.  All of the rights and remedies of the Administrative Agent and any other Secured Party under any Loan Document shall be cumulative, may be exercised individually or concurrently and not exclusive of any other rights or remedies provided by any Laws.  To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Administrative Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar Laws and any and all rights or defenses it may have as a surety, now or hereafter existing, arising out of the exercise by them of any rights hereunder.  If any notice of a proposed sale or other Disposition of any Collateral shall be required by Law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.

 

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(f)                                    Commercially Reasonable.  To the extent that applicable Laws impose duties on the Administrative Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Administrative Agent to do any of the following:

 

(i)                                     fail to incur significant costs, expenses or other Liabilities reasonably deemed as such by the Administrative Agent to prepare any Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition;

 

(ii)                                  fail to obtain Permits, or other consents, for access to any Collateral to be Disposed of or for the collection or Disposition of any Collateral, or, if not required by other Laws, fail to obtain Permits or other consents for the collection or Disposition of any Collateral;

 

(iii)                               fail to exercise remedies against account debtors or other Persons obligated on any Collateral or to remove Liens on any Collateral or to remove any adverse claims against any Collateral;

 

(iv)                              advertise dispositions of any Collateral through publications or media of general circulation, whether or not such Collateral is of a specialized nature or to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring any such Collateral;

 

(v)                                 exercise collection remedies against account debtors and other Persons obligated on any Collateral, directly or through the use of collection agencies or other collection specialists, hire one or more professional auctioneers to assist in the disposition of any Collateral, whether or not such Collateral is of a specialized nature or, to the extent deemed necessary or desirable by the Administrative Agent, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Administrative Agent in the collection or disposition of any Collateral, or utilize Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets to dispose of any Collateral;

 

(vi)                              dispose of assets in wholesale rather than retail markets;

 

(vii)                           disclaim disposition warranties, such as title, possession or quiet enjoyment; or

 

(viii)                        purchase insurance or credit enhancements to insure the Administrative Agent against risks of loss, collection or disposition of any Collateral or to provide to the Administrative Agent a guaranteed return from the collection or disposition of any Collateral.

 

Each Grantor acknowledges that the purpose of this Section 6.1 is to provide a non-exhaustive list of actions or omissions that are commercially reasonable when exercising remedies against any Collateral and that other actions or omissions by the Secured Parties shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6.1.  Without limitation upon the foregoing, nothing contained in this Section 6.1 shall be construed to grant

 

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any rights to any Grantor or to impose any duties on the Administrative Agent that would not have been granted or imposed by this Agreement or by applicable Laws in the absence of this Section 6.1.

 

(g)                                 IP Licenses.  For the purpose of enabling the Administrative Agent to exercise rights and remedies under this Section 6.1 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, Dispose of or grant options to purchase any Collateral) at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, (i) an irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to such Grantor), including in such license the right to sublicense, use and practice any Intellectual Property now owned or hereafter acquired by such Grantor and access to all media in which any of the licensed items may be recorded or stored and to all Software and programs used for the compilation or printout thereof and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real property owned, operated, leased, subleased or otherwise occupied by such Grantor.

 

Section 6.2.                                Accounts and Payments in Respect of General Intangibles.  (a) In addition to, and not in substitution for, any similar requirement in the Credit Agreement, if required by the Administrative Agent at any time following the occurrence and during the continuance of an Event of Default, any payment of accounts or payment in respect of general intangibles, when collected by any Grantor, shall be promptly (and, in any event, within 2 Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Administrative Agent, in a Cash Collateral Account, subject to withdrawal by the Administrative Agent as provided in Section 6.4.  Until so turned over, such payment shall be held by such Grantor in trust for the Administrative Agent, segregated from other funds of such Grantor.  Each such deposit of proceeds of accounts and payments in respect of general intangibles shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

 

(b)                                 At any time following the occurrence and during the continuance of an Event of Default:

 

(i)                                     each Grantor shall, upon the Administrative Agent’s request, deliver to the Administrative Agent all original and other documents evidencing, and relating to, the Contractual Obligations and transactions that gave rise to any account or any payment in respect of general intangibles, including all original orders, invoices and shipping receipts and notify account debtors that the accounts or general intangibles have been collaterally assigned to the Administrative Agent and that payments in respect thereof shall be made directly to the Administrative Agent;

 

(ii)                                  the Administrative Agent may, without notice, at any time following the occurrence and during the continuance of an Event of Default, limit or terminate the authority of a Grantor to collect its accounts or amounts due under general intangibles or any thereof and, in its own name or in the name of others, communicate with account debtors to verify with them to the Administrative Agent’s satisfaction the existence, amount and terms of any account or amounts due under any general intangible.  In

 

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addition, the Administrative Agent may at any time enforce such Grantor’s rights against such account debtors and obligors of general intangibles; and

 

(iii)                               each Grantor shall take all actions, deliver all documents and provide all information necessary or reasonably requested by the Administrative Agent to ensure any Internet Domain Name is registered.

 

(c)                                  Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each account and each payment in respect of general intangibles to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto.  No Secured Party shall have any obligation or liability under any agreement giving rise to an account or a payment in respect of a general intangible by reason of or arising out of any Loan Document or the receipt by any Secured Party of any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform any obligation of any Grantor under or pursuant to any agreement giving rise to an account or a payment in respect of a general intangible, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times.

 

Section 6.3.                                Pledged Collateral.  (a) Voting Rights.  Upon the occurrence and during the continuance of an Event of Default, upon notice by the Administrative Agent to the relevant Grantor or Grantors, the Administrative Agent or its nominee may exercise (A) any voting, consent, corporate and other right pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any right of conversion, exchange and subscription and any other right, privilege or option pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any Pledged Collateral upon the merger, amalgamation, consolidation, reorganization, recapitalization or other fundamental change in the corporate or equivalent structure of any issuer of Pledged Equity, the right to deposit and deliver any Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it; provided, however, that the Administrative Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

 

(b)                                 Proxies.  In order to permit the Administrative Agent to exercise the voting and other consensual rights that it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions that it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Administrative Agent all such proxies, dividend payment orders and other instruments as the Administrative Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Grantor hereby grants to the Administrative Agent an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any

 

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action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) upon the occurrence and during the continuance of an Event of Default and which proxy shall only terminate upon the payment in full of the Secured Obligations.

 

(c)                                  Authorization of Issuers.  Each Grantor hereby expressly irrevocably authorizes and instructs, without any further instructions from such Grantor, each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Administrative Agent in writing that states that an Event of Default has occurred and is continuing and is otherwise in accordance with the terms of this Agreement and each Grantor agrees that such issuer shall be fully protected from Liabilities to such Grantor in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividend or make any other payment with respect to the Pledged Collateral directly to the Administrative Agent.

 

Section 6.4.                                Proceeds to be Turned over to and Held by Administrative Agent.  Unless otherwise expressly provided in the Credit Agreement or this Security Agreement, upon the occurrence and during the continuance of an Event of Default, all proceeds of any Collateral received by any Grantor hereunder in cash or Cash Equivalents shall be held by such Grantor in trust for the Administrative Agent and the other Secured Parties, segregated from other funds of such Grantor, and shall, promptly upon receipt by any Grantor, be turned over to the Administrative Agent in the exact form received (with any necessary endorsement).  All such proceeds of Collateral and any other proceeds of any Collateral received by the Administrative Agent in cash or Cash Equivalents shall be held by the Administrative Agent in a Cash Collateral Account.  All proceeds being held by the Administrative Agent in a Cash Collateral Account (or by such Grantor in trust for the Administrative Agent) shall continue to be held as collateral security for the Secured Obligations and shall not constitute payment thereof until applied as provided in the Credit Agreement.

 

Section 6.5.                                Deficiency.  Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other Disposition of any Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorney employed by the Administrative Agent or any other Secured Party to collect such deficiency.

 

ARTICLE VII

 

THE ADMINISTRATIVE AGENT

 

Section 7.1.                                Administrative Agent’s Appointment as Attorney-in-Fact.  (a) Each Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any Related Party thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of the Loan Documents, to take any action and execute any document or instrument, in each case, that may be necessary or desirable to accomplish the purposes of the Loan Documents.  Without limiting the generality of the foregoing, upon the occurrence and during the continuance of, in the case of 7.1(a)(i), (iii), (iv) and (v), an Event of Default, and in the case of 7.1(a)(ii), a Default or an Event of Default, each Grantor hereby gives the Administrative Agent and its Related Parties the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any of the following:

 

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(i)                                     in the name of such Grantor, in its own name or otherwise, take possession of and indorse and collect any check, draft, note, acceptance or other instrument for the payment of moneys due under any account or general intangible or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of Law or equity or otherwise deemed necessary or desirable by the Administrative Agent for the purpose of collecting any such moneys due under any account or general intangible or with respect to any other Collateral whenever payable;

 

(ii)                                  in the case of any Intellectual Property owned by or licensed to the Grantors, execute, deliver and have recorded any document that the Administrative Agent may request to evidence, effect, publicize or record the Administrative Agent’s security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;

 

(iii)                               pay or discharge taxes (to the extent delinquent) and Liens levied or placed on or threatened against any Collateral, effect any repair or pay any insurance (to the extent delinquent) called for by the terms of the Credit Agreement (including all or any part of the premiums therefor and the costs thereof);

 

(iv)                              execute, in connection with any Disposition provided for in Section 6.1, any document necessary or desirable to effect or evidence (or otherwise in relation to) the Disposition of any Collateral; or

 

(v)                                 (A) direct any party liable for any payment under any Collateral to make payment of any moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall direct, (B) ask or demand for, and collect and receive payment of and receipt for, any moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral, (C) sign and indorse any invoice, freight or express bill, bill of lading, storage or warehouse receipt, draft against debtors, assignment, verification, notice and other document in connection with any Collateral, (D) commence and prosecute any suit, action or proceeding at Law or in equity in any court of competent jurisdiction to collect any Collateral and to enforce any other right in respect of any Collateral, (E) defend any actions, suits, proceedings, audits, claims, demands, orders or disputes brought against such Grantor with respect to any Collateral, (F) settle, compromise or adjust any such actions, suits, proceedings, audits, claims, demands, orders or disputes and, in connection therewith, give such discharges or releases as the Administrative Agent may deem necessary or desirable, (G) assign any Intellectual Property owned by the Grantors or any IP Licenses of the Grantors throughout the world on such terms and conditions and in such manner as the Administrative Agent shall in its sole discretion determine, including the execution and filing of any document necessary to effectuate or record such assignment and (H) generally, Dispose of, grant a Lien on, make any Contractual Obligation with respect to and otherwise deal with, any Collateral as fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes and do, at the Administrative Agent’s option, at any time or from time to time, all acts and things that the Administrative Agent deems necessary to protect, preserve or realize upon any Collateral and the Secured Parties’ security interests therein and to effect the intent of the Loan Documents, all as fully and effectively as such Grantor might do.

 

24


 

(b)                                 If any Grantor fails to perform or comply with any Contractual Obligation contained herein, the Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such Contractual Obligation.

 

(c)                                  The expenses of the Administrative Agent incurred in connection with actions undertaken as provided in this Section 7.1, together with interest thereon at a rate set forth in Section 2.08 (Interest) of the Credit Agreement, from the date of payment by the Administrative Agent to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Administrative Agent on demand.

 

(d)                                 Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue of this Section 7.1.  All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.

 

Section 7.2.                                Authorization to File Financing Statements.  Each Grantor authorizes the Administrative Agent and its Related Parties, at any time and from time to time, to file or record financing statements, amendments thereto, and other filing or recording documents or instruments with respect to any Collateral in such form and in such offices as the Administrative Agent reasonably determines necessary or desirable to perfect the security interests of the Administrative Agent under this Agreement, and such financing statements and amendments may described the Collateral covered thereby as “all assets of the debtor”.  A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.  Such Grantor also hereby ratifies its authorization for the Administrative Agent to have filed any initial financing statement or amendment thereto under the UCC (or other similar Laws) in effect in any jurisdiction if filed prior to the date hereof.

 

Section 7.3.                                Authority of Administrative Agent.  Each Grantor acknowledges that the rights and responsibilities of the Administrative Agent under this Agreement with respect to any action taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Administrative Agent and the other Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Administrative Agent and the Grantors, the Administrative Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation or entitlement to make any inquiry respecting such authority.

 

Section 7.4.                                Duty; Obligations and Liabilities.  (a) Duty of Administrative Agent.  The Administrative Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession shall be to deal with it in the same manner as the Administrative Agent deals with similar property for its own account.  The powers conferred on the Administrative Agent hereunder are solely to protect the Administrative Agent’s interest in the Collateral and shall not impose any duty upon the Administrative Agent to exercise any such powers.  The Administrative Agent shall be accountable only for amounts that it receives as a result of the exercise of such powers, and neither it nor any of its Related Parties shall be

 

25


 

responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.  In addition, the Administrative Agent shall not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehousemen, carrier, forwarding agency, consignee or other bailee if such Person has been selected by the Administrative Agent in good faith.

 

(b)                                 Obligations and Liabilities with respect to Collateral.  No Secured Party and no Related Party thereof shall be liable for failure to demand, collect or realize upon any Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to any Collateral.  The powers conferred on the Administrative Agent hereunder shall not impose any duty upon any other Secured Party to exercise any such powers.  The other Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their respective officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.

 

ARTICLE VIII

 

MISCELLANEOUS

 

Section 8.1.                                Florida Guarantors.  Certain Guarantors are securing their Guaranteed Obligations under this Agreement by, among other things, granting mortgages on real property in the State of Florida, and all required Florida documentary stamp tax is being paid upon the recording of such mortgages.

 

Section 8.2.                                Reinstatement.  Each Grantor agrees that, if any payment made by any Loan Party or other Person and applied to the Secured Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by any Secured Party to such Loan Party, its estate, trustee, receiver or any other party, including any Grantor, under any bankruptcy Law, state or federal Law, common Law or equitable cause, then, to the extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made.  If, prior to any of the foregoing, (a) any Lien or other Collateral securing such Grantor’s liability hereunder shall have been released or terminated by virtue of the foregoing or (b) any provision of the Guaranty hereunder shall have been terminated, cancelled or surrendered, such Lien, other Collateral or provision shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Grantor in respect of any Lien or other Collateral securing such obligation or the amount of such payment.

 

Section 8.3.                                Release of Collateral.  (a) At the time contemplated by clause (a)(i) of Section 9.08 (Collateral and Guaranty Matters) of the Credit Agreement, the Collateral shall be released from the Lien created hereby and all right, interest and title of the Administrative Agent and the Secured Parties in such Collateral shall be re-assigned and re-transferred to the Grantors and this Agreement and all obligations of the Administrative Agent and each Grantor hereunder

 

26


 

shall terminate (other than those expressly stated to survive such termination), all without the delivery of any instrument or the performance of any act by any party.  In furtherance of the foregoing, upon such release and termination, each Grantor is hereby authorized to file, record or deliver such satisfactions of mortgage, UCC-3 financing statements, releases of intellectual property security agreements (in the form attached hereto as Annex 4), and all other release or termination documentation evidencing the release of the Liens and the termination of this Agreement and the other Loan Documents at such time.

 

(b)                                 If the Administrative Agent shall be permitted pursuant to clause (a)(ii) of Section 9.08 of the Credit Agreement to release any Lien on any Collateral, then upon the request of the Borrower, such Collateral shall be released from the Lien created hereby and all right, interest and title of the Administrative Agent and the Secured Parties in such Collateral shall be re-assigned and re-transferred to such Grantor, in each case, to the extent provided under the Credit Agreement and subject to the terms and conditions set forth therein.

 

(c)                                  If the Administrative Agent shall be directed or permitted pursuant to clause (a)(iii) or (a)(iv) of Section 9.08 of the Credit Agreement to release any Lien on any Collateral and/or any Grantor from its obligations hereunder, then upon the request of the Borrower, such Collateral shall be released from the Lien created hereby and/or such Grantor shall be released from its obligations hereunder, in each case, to the extent provided in a direction from the Required Lenders or under the Credit Agreement (as applicable) and subject to the terms and conditions set forth therein.

 

At the request of any Grantor following any release or termination described in this Section 8.3, the Administrative Agent (or other applicable Agent) shall, at the sole expense of such Grantor, deliver to such Grantor any Collateral owned by such Grantor that is held by the Administrative Agent (or other applicable Agent) and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such release or termination, in each case, without any representation or warranty of any kind by, or recourse to, the Agents, the Lenders or any Secured Party.

 

Section 8.4.                                Independent Obligations.  The obligations of each Grantor hereunder are independent of and separate from the Secured Obligations and the Guaranteed Obligations.  If any Secured Obligation or Guaranteed Obligation is not paid when due, or upon any Event of Default, the Administrative Agent may, at its sole election, proceed directly and at once, without notice, against any Grantor and any Collateral to collect and recover the full amount of any Secured Obligation or Guaranteed Obligation then due, without first proceeding against any other Grantor, any other Loan Party or any other Collateral and without first joining any other Grantor or any other Loan Party in any proceeding.

 

Section 8.5.                                No Waiver by Course of Conduct.  No Secured Party shall by any act (except by a written instrument pursuant to Section 8.6), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default.  No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that such Secured Party would otherwise have on any future occasion.

 

27


 

Section 8.6.                                Amendments in Writing.  None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 10.01 of the Credit Agreement; provided, however, that annexes to this Agreement may be supplemented (but no existing provisions may be modified and no Collateral may be released) through Pledge Amendments and Joinder Agreements, in substantially the form of Annex 1 and Annex 2, respectively, in each case duly executed by the Administrative Agent and each Grantor directly affected thereby.

 

Section 8.7.                                Additional Grantors; Additional Pledged Collateral.  (a) Joinder Agreements.  If, at the option of the Borrower or as required pursuant to Section 6.12 of the Credit Agreement, the Borrower shall cause any Subsidiary that is not a Grantor to become a Grantor hereunder, such Subsidiary shall execute and deliver to the Administrative Agent a Joinder Agreement substantially in the form of Annex 2 and shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Grantor party hereto on the Closing Date.

 

(b)                                 Pledge Amendments.  To the extent any Pledged Collateral has not been delivered as of the Closing Date, such Grantor shall deliver a pledge amendment duly executed by the Grantor in substantially the form of Annex 1 (each, a “Pledge Amendment”).  Such Grantor authorizes the Administrative Agent to attach each Pledge Amendment to this Agreement.

 

Section 8.8.                                Notices.  All notices, requests and demands to or upon the Administrative Agent or any Grantor hereunder shall be effected in the manner provided for in Section 10.02 of the Credit Agreement; provided, however, that any such notice, request or demand to or upon any Grantor shall be addressed to the Borrower’s notice address set forth in such Section 10.02.

 

Section 8.9.                                Successors and Assigns.  This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of each Secured Party and their successors and assigns; provided, however, that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent.

 

Section 8.10.                         Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery by telecopier of an executed counterpart of a signature page to this Agreement shall be as effective as delivery of an original executed counterpart of this Agreement.  The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.

 

Section 8.11.                         Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

28


 

Section 8.12.                         Governing Law.

 

(a)          THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT (OTHER THAN ANY LOAN DOCUMENT EXPRESSLY GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT AS SET FORTH IN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

(b)         ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH GRANTOR AND THE ADMINISTRATIVE AGENT (“EACH PARTY”) CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.

 

Section 8.13.                         Waiver of Jury Trial.  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

Section 8.14.                         Mexico Pledged Equity.  Notwithstanding anything to the contrary contained herein, subject to Section 8.11, with respect to the Mexico Pledged Equity, solely to the extent any term or provision of this Agreement conflicts with and/or contradicts the terms and provisions of the applicable Mexico Pledge Agreement or the applicable Laws of Mexico, as the case may be, the relevant terms and provisions of the Mexico Pledge Agreement shall govern; provided, however, that each Grantor, including ClubCorp Mexico, Inc., shall comply with any term or provision of this Agreement that is in addition to, but not conflicting with or contradictory to the terms and provisions of the applicable Mexico Pledge Agreements or the applicable Laws of Mexico, as the case may be, in all respects.

 

[SIGNATURE PAGES FOLLOW]

 

29


 

IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty and Security Agreement to be duly executed and delivered as of the date first above written.

 

 

CLUBCORP CLUB OPERATIONS, INC.,

 

as Grantor

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J.Keiser

 

Title: Secretary

 

 

 

 

 

CCA CLUB OPERATIONS HOLDINGS, LLC,

 

as Grantor

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J.Keiser

 

Title: Secretary

 

 

 

 

 

CLUBCORP USA, INC.,

 

as Grantor

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J.Keiser

 

Title: Secretary

 

[SIGNATURE PAGE TO GUARANTY AND SECURITY AGREEMENT]

 


 

 

CLUBCORP MEZZANINE BORROWER, LLC,

 

as Grantor

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J.Keiser

 

Title: Secretary

 

 

 

 

 

CCA MEZZANINE HOLDCO, LLC,

 

as Grantor

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J.Keiser

 

Title: Secretary

 

 

 

 

 

CLUBCORP MORTGAGE BORROWER, LLC,

 

as Grantor

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J.Keiser

 

Title: Secretary

 

 

 

 

 

CCA GOLF COURSE HOLDCO, LLC,

 

as Grantor

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J.Keiser

 

Title: Secretary

 

[SIGNATURE PAGE TO GUARANTY AND SECURITY AGREEMENT]

 

 

 

 

GRANTORS:

 

 

 

 

 

191 ATHLETIC CLUB MANAGEMENT COMPANY, LLC

 

191 CC OPERATING CO., LLC

 

AKRON MANAGEMENT CORP.

 

ALISO VIEJO GOLF CLUB JOINT VENTURE

 

ANTHEM GOLF, LLC

 

APRIL SOUND MANAGEMENT CORP.

 

ASPEN GLEN GOLF CLUB MANAGEMENT COMPANY

 

ATHLETIC CLUB AT THE EQUITABLE CENTER, INC.

 

AZ CLUB, LLC

 

BARTON CREEK RESORT & CLUBS, INC.

 

BAY OAKS COUNTRY CLUB, INC.

 

BLUEGRASS CLUB, LLC

 

BROOKHAVEN COUNTRY CLUB, INC.

 

CAPITAL CITY CLUB OF MONTGOMERY, INC.

 

CAPITAL CITY CLUB OF RALEIGH, INC.

 

CENTRE CLUB, INC.

 

CITRUS CLUB, INC.

 

CITY CLUB OF WASHINGTON, INC.

 

CLUB AT BOSTON COLLEGE, INC.

 

CLUB LE CONTE, INC.

 

COLUMBIA CAPITAL CITY CLUB CORP.

 

COLUMBIA TOWER CLUB, INC.

 

COUNTRYSIDE COUNTRY CLUB, INC.

 

CURRITUCK GOLF, LLC

 

DALLAS TOWER CLUB, INC.

 

DAYTON RACQUET CLUB, INC.

 

DEBARY MANAGEMENT CORP.

 

DIAMANTE’ GOLF CLUB PARTNERS, INC.

 

DIAMANTE’ GOLF CLUB MANAGEMENT, INC.

 

DIAMOND RUN CLUB, INC.

 

EMPIRE RANCH, LLC

 

FAIR OAKS CLUB CORP.

 

FARMS OF NEW KENT MANAGEMENT, LLC

 

FFFC GOLF ACQUISITIONS, L.L.C.

 

FIRST CITY CLUB MANAGEMENT, INC.

 

FORT BEND ACQUISITION CORP.

 

 

 

 

 

 

By:

/s/ Ingrid J.Keiser

 

 

 

Name: Ingrid J. Keiser

 

 

 

Title: Secretary

 

[Signature Page to Guaranty and Security Agreement]

 


 

 

GCC ASSET MANAGEMENT, INC.

 

GLENDALE MANAGEMENT CORP.

 

GLENDALE RACQUET CLUB, INC.

 

GP BEAR’S BEST ATLANTA, INC.

 

GRANCH GOLF CLUB, INC.

 

GREENBRIER COUNTRY CLUB, INC.

 

GREENSPOINT CLUB, INC.

 

HACKBERRY CREEK COUNTRY CLUB, INC.

 

HAILE PLANTATION MANAGEMENT CORP.

 

HARBOUR CLUB OF CHARLESTON, INC.

 

HEARTHSTONE COUNTRY CLUB, INC.

 

HILL COUNTRY GOLF, INC.

 

HILLS II OF LAKEWAY, INC.

 

HOUSTON CITY CLUB, INC.

 

HPG, L.C.

 

HUNTER’S GREEN ACQUISITION CORP.

 

INDIGO RUN ASSET CORP.

 

IRVING CLUB ACQUISITION CORP.

 

KINGWOOD COUNTRY CLUB, INC.

 

KNOLLWOOD COUNTRY CLUB, INC.

 

LA CIMA CLUB, INC.

 

LAKEWAY CLUBS, INC.

 

LAUREL SPRINGS HOLDCO, LLC

 

LIONSGATE GOLF CLUB, INC.

 

MAC CLUB, LLC

 

MANAGEMENT COMPANY FOR EAGLE RIDGE AND THE PRESERVE

 

MANAGER FOR CCHH, INC.

 

MASTER CLUB, INC.

 

MEMORIAL STADIUM CLUB MANAGEMENT CORP.

 

MEMPHIS CITY CLUB, INC.

 

MH VILLAS, INC.

 

MONARCH EP MANAGEMENT CORP.

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J. Keiser

 

Title: Secretary

 

[Signature Page to Guaranty and Security Agreement]

 


 

 

NASHVILLE CLUB MANAGEMENT, INC.

 

NEW ENGLAND COUNTRY CLUB MANAGEMENT, INC.

 

NORTHWOOD MANAGEMENT CORP.

 

OAK POINTE COUNTRY CLUB, INC.

 

OAKMONT MANAGEMENT CORP.

 

OPERATIONS COMPANY FOR HOMESTEAD, INC.

 

OWNERS CLUB ASSET COMPANY

 

PIEDMONT CLUB, INC.

 

PIEDMONT GOLFERS’ CLUB, LLC

 

PYRAMID CLUB MANAGEMENT, INC.

 

QUAIL HOLLOW MANAGEMENT, INC.

 

QUEENS HARBOUR CORPORATION

 

RENAISSANCE CLUB, INC.

 

RICHARDSON COUNTRY CLUB CORP.

 

RIVER CREEK COUNTRY CLUB, INC.

 

RIVERS CLUB, INC.

 

SHADY VALLEY MANAGEMENT CORP.

 

SHOREBY CLUB MANAGEMENT, INC.

 

SILVER LAKE MANAGEMENT CORP.

 

SKYLINE CLUB, INC.

 

SOCIETY MANAGEMENT, INC.

 

SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC.

 

STONEBRIAR MANAGEMENT CORP.

 

STONEHENGE CLUB, INC.

 

TAMPA PALMS CLUB, INC.

 

THE 191 CLUB, INC.

 

THE BUCKHEAD CLUB, INC.

 

THE CLUB AT CIMARRON, INC.

 

THE CLUB AT SOCIETY CENTER, INC.

 

THE COMMERCE CLUB, INC.

 

THE DOWNTOWN CLUB, INC.

 

THE MANAGER OF THE OWNER’S CLUB, INC.

 

THE METROPOLITAN CLUB OF CHICAGO, INC.

 

THE OWNER’S CLUB, INC.

 

THE OWNER’S CLUB OF SOUTH CAROLINA, L.L.C.

 

THE PLAZA CLUB OF SAN ANTONIO, INC.

 

THE SUMMIT CLUB, INC.

 

 

 

By:

/s/ Ingrid J.Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

[Signature Page to Guaranty and Security Agreement]

 


 

 

THE UNIVERSITY CLUB, INC.

 

TIMARRON GOLF CLUB, INC.

 

TOWER CITY CLUB OF VIRGINIA, INC.

 

TOWER CLUB OF DALLAS, INC.

 

TOWER CLUB, INC.

 

TOWN POINT CLUB, INC.

 

TREESDALE COUNTRY CLUB, INC.

 

UMASS CLUB MANAGEMENT, LLC

 

UNC ALUMNI CLUB MANAGEMENT, INC.

 

UNIVERSITY CLUB MANAGEMENT CO., INC.

 

UNIVERSITY CLUB, INC.

 

WALNUT CREEK MANAGEMENT CORPORATION

 

WEST PARK CLUB, INC.

 

WESTLAKE CITY CLUB, INC.

 

WILDFLOWER COUNTRY CLUB, INC.

 

WILLOW CREEK MANAGEMENT, INC.

 

WOODSIDE PLANTATION COUNTRY CLUB, INC.

 

 

 

By:

/s/ Ingrid J.Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

[Signature Page to Guaranty and Security Agreement]

 


 

 

CLUBCORP AIRWAYS GOLF, INC.

 

CLUBCORP ALISO VIEJO HOLDING CORP.

 

CLUBCORP ASIA INVESTMENTS, INC.

 

CLUBCORP AVEN HOLDINGS, INC.

 

CLUBCORP BRAEMAR COUNTRY CLUB, INC.

 

CLUBCORP BUNKER HILL CLUB, INC.

 

CLUBCORP BUYING SERVICES, INC.

 

CLUBCORP CANYON CREST COUNTRY CLUB, INC.

 

CLUBCORP CENTER CLUB, INC.

 

CLUBCORP COTO PROPERTY HOLDINGS, INC.

 

CLUBCORP CROW CANYON MANAGEMENT CORP.

 

CLUBCORP DESERT FALLS COUNTRY CLUB, INC.

 

CLUBCORP FINANCIAL MANAGEMENT COMPANY

 

CLUBCORP GCL CORPORATION

 

CLUBCORP GEN PAR OF TEXAS, L.L.C.

 

CLUBCORP GOLF OF CALIFORNIA, L.L.C.

 

CLUBCORP GOLF OF FLORIDA, L.L.C.

 

CLUBCORP GOLF OF NORTH CAROLINA, L.L.C.

 

CLUBCORP GRANITE BAY MANAGEMENT, INC.

 

CLUBCORP GRAPHICS, INC.

 

CLUBCORP HAMLET, LLC

 

CLUBCORP INTERNATIONAL, INC.

 

CLUBCORP IW GOLF CLUB, INC.

 

CLUBCORP MANAGEMENT COMPANY FOR STONE CREEK, LLC

 

CLUBCORP MEXICO, INC.

 

CLUBCORP MISSION HILLS COUNTRY CLUB, INC.

 

CLUBCORP PORTER VALLEY COUNTRY CLUB, INC.

 

CLUBCORP PUBLICATIONS, INC.

 

CLUBCORP SAN JOSE CLUB, INC.

 

CLUBCORP SHADOW RIDGE GOLF CLUB, INC.

 

CLUBCORP SPRING VALLEY LAKE COUNTRY CLUB, INC.

 

CLUBCORP SYMPHONY TOWERS CLUB, INC.

 

CLUBCORP TEAL BEND GOLF CLUB, INC.

 

CLUBCORP TTC, LLC

 

CLUBCORP TURKEY CREEK GOLF CLUB, INC.

 

CLUBCORP WILLOW CREEK, LLC

 

CLUBCORP WIND WATCH, LLC

 

 

 

By:

/s/ Ingrid J.Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

[Signature Page to Guaranty and Security Agreement]

 


 

 

THE OWNERS CLUB AT HILTON HEAD, L.P.

 

By: The Owner’s Club of South Carolina, L.L.C.,
as general partner

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J. Keiser

 

Title: Secretary

 

 

CLUBCORP GOLF OF GEORGIA, L.P.

CLUBCORP GOLF OF TEXAS, L.P.

 

By: ClubCorp Gen Par of Texas, L.L.C.,
as general partner

 

 

 

By:

/s/ Ingrid J.Keiser

 

Name: Ingrid J. Keiser

 

Title: Secretary

 

 

CANYON GATE AT LAS VEGAS, INC.

GP BEAR’S BEST LAS VEGAS, INC.

 

 

 

By:

/s/ Eric L. Affeldt

 

Name: Eric L. Affeldt

 

Title: President

 

[Signature Page to Guaranty and Security Agreement]

 


 

CLUBCORP - ASIA

 

 

 

By:

/s/ Ingrid J.Keiser

 

 

Name: Ingrid J. Keiser

 

 

Title: Secretary

 

[Signature Page to Guaranty and Security Agreement]

 


 

ACCEPTED AND AGREED

as of the date first above written:

 

CITICORP NORTH AMERICA, INC.

as Administrative Agent

 

 

By:

/s/ Ana E. Rosu

 

 

Name:

Ana E. Rosu

 

 

Title:

Authorized Signatory

 

 

 

[Signature Page to Guaranty and Security Agreement]

 

 

ANNEX 1

TO

GUARANTY AND SECURITY AGREEMENT(1)

 

FORM OF PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of                          , 20    , is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of November 30, 2010, by Clubcorp, Inc., a Delaware corporation (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of Citicorp North America, Inc., as administrative agent and collateral agent for the Secured Parties referred to therein (the “Guaranty and Security Agreement”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Schedule 1 to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Article IV of the Guaranty and Security Agreement is true and correct as of the date hereof as if made on and as of such date.

 

 

[GRANTOR]

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

To be used for pledge of Additional Pledged Collateral by existing Grantor.

 

GUARANTY AND SECURITY AGREEMENT

CLUBCORP, INC.

 

A1-1


 

Schedule 1

 

PLEDGED EQUITY

 

ISSUER

 

CLASS

 

CERTIFICATE NO(S).

 

PAR VALUE

 

NUMBER OF
SHARES,
UNITS OR
INTERESTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PLEDGED DEBT

 

ISSUER

 

DESCRIPTION OF DEBT

 

CERTIFICATE NO(S).

 

FINAL MATURITY

 

PRINCIPAL
AMOUNT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A1-2


 

ACKNOWLEDGED AND AGREED

 

as of the date first above written:

 

 

 

CITICORP NORTH AMERICA, INC.

 

as Administrative Agent

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

[PLEDGE AMENDMENT]

 


 

ANNEX 2

TO

GUARANTY AND SECURITY AGREEMENT

 

FORM OF JOINDER AGREEMENT

 

This JOINDER AGREEMENT, dated as of                        , 20    , is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of November 30, 2010, by Clubcorp, Inc., a Delaware corporation (the “Borrower”) and the Affiliates of the Borrower from time to time party thereto as Grantors in favor of Citicorp North America, Inc., as administrative agent and collateral agent for the Secured Parties referred to therein (the “Guaranty and Security Agreement”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

By executing and delivering this Joinder Agreement, the undersigned, as provided in Section 8.6 of the Guaranty and Security Agreement, hereby becomes a party to the Guaranty and Security Agreement as a Grantor thereunder with the same force and effect as if originally named as a Grantor therein and, without limiting the generality of the foregoing, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of the undersigned, hereby mortgages, pledges and hypothecates to the Administrative Agent for the benefit of the Secured Parties, and grants to the Administrative Agent for the benefit of the Secured Parties a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a Grantor thereunder.  The undersigned hereby agrees to be bound as a Grantor for the purposes of the Guaranty and Security Agreement.

 

The information set forth in Annex A is hereby added to the information set forth in Schedules 1 through 6 to the Guaranty and Security Agreement.  By acknowledging and agreeing to this Joinder Agreement, the undersigned hereby agree that this Joinder Agreement may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex A to this Joinder Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Secured Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Article IV of the Guaranty and Security Agreement applicable to it is true and correct on and as the date hereof as if made on and as of such date.

 

IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered as of the date first above written.

 

 

[ADDITIONAL GRANTOR]

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

GUARANTY AND SECURITY AGREEMENT

CLUBCORP, INC.

 

A2-2


 

ACKNOWLEDGED AND AGREED

 

as of the date first above written:

 

 

 

[EACH GRANTOR PLEDGING

 

ADDITIONAL COLLATERAL]

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

CITICORP NORTH AMERICA, INC.

 

 

as Administrative Agent

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

[JOINDER AGREEMENT]

 


 

ANNEX 3
TO
GUARANTY AND SECURITY AGREEMENT

 

FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT(1)

 

THIS [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT, dated as of                        , 20    , is made by each of the entities listed on the signature pages hereof (each a “Grantor” and, collectively, the “Grantors”), in favor of Citicorp North America, Inc., as administrative agent and collateral agent (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”) for the Lenders and the L/C Issuer (as defined in the Credit Agreement referred to below).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Credit Agreement, dated as of November 30, 2010 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CCA Club Operations Holdings, LLC, a Delaware corporation (“Holdings”), Clubcorp Club Operations, Inc., a Delaware corporation (the “Borrower”), the L/C Issuer (as defined therein), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and the Administrative Agent, the Lenders and the L/C Issuer have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

WHEREAS, each Grantor (other than the Borrower) has agreed, pursuant to a Guaranty and Security Agreement of even date herewith in favor of the Administrative Agent (the “Guaranty and Security Agreement”), to guarantee the Obligations (as defined in the Credit Agreement) of the Borrower; and

 

WHEREAS, all of the Grantors are party to the Guaranty and Security Agreement pursuant to which the Grantors are required to execute and deliver this [Copyright] [Patent] [Trademark] Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and to induce the Lenders, the L/C Issuers and the Administrative Agent to enter into the Credit Agreement and to induce the Lenders and the L/C Issuers to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Administrative Agent as follows:

 

Section 1.              Defined Terms.  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

Section 2.              Grant of Security Interest in [Copyright] [Trademark] [Patent] Collateral.  Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates to the Administrative Agent for the benefit of the Secured Parties, and grants to the Administrative Agent for the benefit of the Secured Parties a Lien on and security interest in, all of its right, title and interest in, to and under the following Collateral of such Grantor (the “[Copyright] [Patent] [Trademark] Collateral”):

 

(1)  Separate agreements should be executed relating to each Grantor’s respective Copyrights, Patents, and Trademarks.

 

A3-1


 

(a)           [all of its Copyrights and all IP Licenses providing for the grant by or to such Grantor of any right under any Copyright, including, without limitation, those referred to on Schedule 1 hereto;

 

(b)           all renewals, reversions and extensions of the foregoing; and

 

(c)           all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at Law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

or

 

(a)           [all of its Patents and all IP Licenses providing for the grant by or to such Grantor of any right under any Patent, including, without limitation, those referred to on Schedule 1 hereto;

 

(b)           all reissues, reexaminations, continuations, continuations-in-part, divisionals, renewals and extensions of the foregoing; and

 

(c)           all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at Law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

or

 

(d)           [all of its Trademarks and all IP Licenses providing for the grant by or to such Grantor of any right under any Trademark, including, without limitation, those referred to on Schedule 1 hereto;

 

(e)           all renewals and extensions of the foregoing;

 

(f)            all goodwill of the business connected with the use of, and symbolized by, each such Trademark; and

 

(g)           all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at Law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

Section 3.              Guaranty and Security Agreement.  The security interest granted pursuant to this [Copyright] [Patent] [Trademark] Security Agreement is granted in conjunction with the security interest granted to the Administrative Agent pursuant to the Guaranty and Security Agreement and each Grantor hereby acknowledges and agrees that the rights and remedies of the Administrative Agent with respect to the security interest in the [Copyright] [Patent] [Trademark] Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.

 

A3-2


 

Section 4.              Grantor Remains Liable.  Each Grantor hereby agrees that, anything herein to the contrary notwithstanding, such Grantor shall assume full and complete responsibility for the prosecution, defense, enforcement or any other necessary or desirable actions in connection with their [Copyrights] [Patents] [Trademarks] and IP Licenses subject to a security interest hereunder.

 

Section 5.              Counterparts.  This [Copyright] [Patent] [Trademark] Security Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery by telecopier of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.  The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.

 

Section 6.              Governing Law.

 

(i)            THIS [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT AS SET FORTH IN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

(ii)           ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH GRANTOR AND THE ADMINISTRATIVE AGENT (“EACH PARTY”) CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.

 

[SIGNATURE PAGES FOLLOW]

 

A3-3


 

IN WITNESS WHEREOF, each Grantor has caused this [Copyright] [Patent] [Trademark] Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

 

 

Very truly yours,

 

 

 

 

 

[GRANTOR]

 

as Grantor

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

ACCEPTED AND AGREED

 

as of the date first above written:

 

 

 

CITICORP NORTH AMERICA, INC.

 

as Administrative Agent

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 


 

SCHEDULE I
TO
[COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT

 

[Copyright] [Patent] [Trademark] Registrations

 

A.                                   REGISTERED [COPYRIGHTS] [PATENTS] [TRADEMARKS]

 

[Include Registration Number and Date]

 

B.                                     [COPYRIGHT] [PATENT] [TRADEMARK] APPLICATIONS

 

[Include Application Number and Date]

 

C.                                     IP LICENSES

 

[Include complete legal description of agreement (name of agreement, parties and date)]

 


 

ANNEX 4
TO
GUARANTY AND SECURITY AGREEMENT

 

FORM OF RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY

 

WHEREAS, pursuant to that certain [Patent][Trademark][Copyright] Security Agreement, dated as of [      ], [    ], [        ] (the “Security Agreement”), recorded in the United States Patent and Trademark Office at [Reel/Volume] Number], [Frame/Page] [Number], the parties listed on Schedule A attached hereto as “Record Owner” (“Releasee”) granted to Citicorp North America, Inc. (“Releasor”),  as administrative agent for itself and various other financial institutions, a security interest in all right, title and interest of Releasee in and to the [patents][trademarks][copyrights] and applications listed on Schedule A attached hereto (the “IP”); and

 

WHEREAS, Releasor wishes to provide a document suitable for recording in the United States Patent and Trademark office for purposes of recording the release, relinquishment and discharge of its security interest in the IP.

 

NOW, THEREFORE, in consideration of and in exchange for good and valuable consideration, Releasor hereby relinquishes, releases and discharges its security interest in the IP conveyed to Releasor pursuant to the Security Agreement and/or any other agreement, and Releasor hereby reassigns any and all such right, title and interest that it may have in the IP to Releasee.  Releasor further agrees to execute and deliver, at Releasee’s sole expense, to Releasee any and all further documents or instruments and do any and all further acts which Releasee (or Releasee’s agents or designees) reasonably request in order to confirm Releasee’s right, title and interest in and to the IP.

 

IN WITNESS WHEREOF, the parties have caused this Release of Security Interest in [Patents][Trademarks][Copyrights] to be duly executed as of [      ], [    ], [        ].

 

 

 

Citicorp North America, Inc.,

 

as Administrative Agent

 

 

 

 

 

Name:

 

 

Title:

 

 


 

ANNEX 4
TO
GUARANTY AND SECURITY AGREEMENT

 

SCHEDULE A

 

A.                                   REGISTERED [COPYRIGHTS] [PATENTS] [TRADEMARKS]

 

[Include Registration Number and Date]

 

B.                                     [COPYRIGHT] [PATENT] [TRADEMARK] APPLICATIONS

 

[Include Application Number and Date]

 

C.                                     IP LICENSES

 

[Include complete legal description of agreement (name of agreement, parties and date)]

 

 

SCHEDULE 1

 

COMMERCIAL TORT CLAIMS

 

None

 


 

SCHEDULE 2

 

FILINGS

 

1. A UCC-1 financing statement in a form satisfactory to the Administrative Agent will be filed with the applicable filing office as listed in this Schedule 2 against each Grantor in their respective jurisdiction of organization.

 

State

 

Filing Office

 

Applicable Grantors

Alabama

 

Secretary of State

 

·      Capital Club Of Montgomery, Inc.

·      The Summit Club, Inc.

Arizona

 

Secretary of State

 

·      Anthem Golf, LLC

·      GRanch Golf Club, Inc.

Arkansas

 

Secretary of State

 

·      Diamante’ Golf Club Management, Inc.

·      Diamante’ Golf Club Partners, Inc.

California

 

Secretary of State

 

·      Aliso Viejo Golf Club Joint Venture

·      MH Villas, Inc.

Colorado

 

Department of State

 

·      Aspen Glen Golf Club Management Company

District of Columbia

 

Recorder of Deeds

 

·      City Club of Washington, Inc.

Delaware

 

Secretary of State

 

·      191 Athletic Club Management Company, LLC

·      191 CC Operating Co., LLC

·      AZ Club, LLC

·      CCA Club Operations Holdings, LLC

·      CCA Golf Course Holdco, LLC

·      CCA Mezzanine Holdco, LLC

·      ClubCorp Airways Golf, Inc.

·      ClubCorp Aliso Viejo Holding Corp.

·      ClubCorp Aven Holdings, Inc.

·      ClubCorp Braemar Country Club, Inc.

·      ClubCorp Bunker Hill Club, Inc.

·      ClubCorp Buying Services, Inc.

·      ClubCorp Canyon Crest Country Club, Inc.

·      ClubCorp Center Club, Inc.

·      ClubCorp Club Operations, Inc.

·      ClubCorp Coto Property Holdings, Inc.

·      ClubCorp Crow Canyon Management Corp.

·      ClubCorp Desert Falls Country Club, Inc.

·      ClubCorp GCL Corporation

·      ClubCorp Gen Par of Texas, L.L.C.

·      ClubCorp Golf of California, L.L.C.

·      ClubCorp Golf of Florida, L.L.C.

·      ClubCorp Golf of North Carolina, L.L.C.

·      ClubCorp Granite Bay Management, Inc.

·      ClubCorp Hamlet, LLC

·      ClubCorp IW Golf Club, Inc.

·      ClubCorp Management Company for Stone Creek, LLC

·      ClubCorp Mezzanine Borrower, LLC

·      ClubCorp Mission Hills Country Club, Inc.

·      ClubCorp Mortgage Borrower, LLC

 


 

 

 

 

 

·      ClubCorp Porter Valley Country Club, LLC

·      ClubCorp San Jose Club, Inc.

·      ClubCorp Shadow Ridge Golf Club, Inc.

·      ClubCorp Spring Valley Lake Country Club, Inc.

·      ClubCorp Symphony Towers Club, Inc.

·      ClubCorp Teal Bend Golf Club, Inc.

·      ClubCorp TTC, LLC

·      ClubCorp Turkey Creek Golf Club, Inc.

·      ClubCorp USA, Inc.

·      ClubCorp Willow Creek, LLC

·      ClubCorp Wind Watch, LLC

·      Currituck Golf, LLC

·      Empire Ranch, LLC

·      Farms of New Kent Management, LLC

·      FFFC Golf Acquisitions, L.L.C.

·      Laurel Springs Holdco, LLC

·      MAC Club, LLC

·      Owners Club Asset Company

·      The Owner’s Club of South Carolina, L.L.C.

·      The Owners Club, Inc.

·      UMass Club Management, LLCClubCorp

Florida

 

Florida Secured Transactions Registry

 

·      Centre Club, Inc.

·      Citrus Club, Inc.

·      ClubCorp Graphics, Inc.

·      Countryside Country Club, Inc.

·      DeBary Management Corp.

·      Haile Plantation Management Corp.

·      Hunter’s Green Acquisition Corp.

·      HPG, L.C.

·      Management Company for Eagle Ridge and The Preserve

·      Monarch EP Management Corp.

·      Queens Harbour Corporation

·      Tampa Palms Club, Inc.

·      Tower Club, Inc.

·      University Club, Inc.

·      University Club Management Co., Inc.

Georgia

 

Local — Clerk of Superior Court

 

·      ClubCorp Golf of Georgia, L.P.

·      First City Club Management, Inc.

·      GP Bear’s Best Atlanta, Inc.

·      Northwood Management Corp.

·      The 191 Club, Inc.

·      The Buckhead Club, Inc.

Illinois

 

Secretary of State

 

·      The Metropolitan Club of Chicago, Inc.

Indiana

 

Secretary of State

 

·      Knollwood Country Club, Inc.

·      Skyline Club, Inc.

Kansas

 

Secretary of State

 

·      Lionsgate Golf Club, Inc.

Louisiana

 

Local — Parish Clerk

 

·      Southern Trace Country Club of Shreveport, Inc.

Massachusetts

 

Secretary of Commonwealth

 

·      Club at Boston College, Inc.

·      New England Country Club Management, Inc.

Michigan

 

Department of State

 

·      Oak Pointe Country Club, Inc.

·      Renaissance Club, Inc.

 


 

Mississippi

 

Secretary of State

 

·      The University Club, Inc.

Nevada

 

Secretary of State

 

·      Canyon Gate at Las Vegas, Inc.

·      ClubCorp - Asia

·      ClubCorp Asia Investments Inc.

·      ClubCorp Financial Management Company

·      ClubCorp International, Inc.

·      ClubCorp Mexico, Inc.

·      ClubCorp Publications, Inc.

·      GP Bear’s Best Las Vegas, Inc.

·      Master Club, Inc.

·      Society Management, Inc.

New York

 

Department of State

 

·      Athletic Club at the Equitable Center, Inc.

North Carolina

 

Secretary of State

 

·      Capital City Club of Raleigh, Inc.

·      Piedmont Club, Inc.

·      UNC Alumni Club Management, Inc.

Ohio

 

Secretary of State

 

·      Akron Management Corp.

·      Dayton Racquet Club, Inc.

·      Quail Hollow Management, Inc.

·      Shoreby Club Management, Inc.

·      Silver Lake Management Corp.

·      The Club at Society Center, Inc.

Pennsylvania

 

Department of State

 

·      Diamond Run Club, Inc.

·      Pyramid Club Management, Inc.

·      Rivers Club, Inc.

·      Treesdale Country Club, Inc.

South Carolina

 

Secretary of State

 

·      Columbia Capital City Club Corp.

·      Harbour Club of Charleston, Inc.

·      Indigo Run Asset Corp.

·      Manager for CCHH, Inc.

·      Piedmont Golfers’ Club LLC

·      The Commerce Club, Inc.

·      The Manager of the Owner’s Club, Inc.

·      The Owner’s Club at Hilton Head, L.P.

·      Woodside Plantation Country Club, Inc.

Tennessee

 

Secretary of State

 

·      Bluegrass Club, LLC

·      Club Le Conte, Inc.

·      Memphis City Club, Inc.

·      Nashville Club Management, Inc.

Texas

 

Secretary of State

 

·      April Sound Management Corp.

·      Barton Creek Resort & Clubs, Inc.

·      Bay Oaks Country Club, Inc.

·      Brookhaven Country Club, Inc.

·      ClubCorp Golf of Texas, L.P.

·      Dallas Tower Club, Inc.

·      Fair Oaks Club Corp.

·      Fort Bend Acquisition Corp.

·      GCC Asset Management, Inc.

·      Greenspoint Club, Inc.

·      Hackberry Creek Country Club, Inc.

·      Hearthstone Country Club, Inc.

·      Hill Country Golf, Inc.

·      Hills II of Lakeway, Inc.

 


 

 

 

 

 

·      Houston City Club, Inc.

·      Irving Club Acquisition Corp.

·      Kingwood Country Club, Inc.

·      La Cima Club, Inc.

·      Lakeway Clubs, Inc.

·      Memorial Stadium Club Management Corp.

·      Oakmont Management Corp.

·      Richardson Country Club Corp.

·      Shady Valley Management Corp.

·      Stonebriar Management Corp.

·      The Club at Cimarron, Inc.

·      The Downtown Club, Inc.

·      The Plaza Club of San Antonio, Inc.

·      Timarron Golf Club, Inc.

·      Tower Club of Dallas, Inc.

·      Walnut Creek Management Corporation

·      West Park Club, Inc.

·      Westlake City Club, Inc.

·      Wildflower Country Club, Inc.

·      Willow Creek Management, Inc.

Virginia

 

State Corporation Commission

 

·      Greenbrier Country Club, Inc.

·      Operations Company for Homestead, Inc.

·      River Creek Country Club, Inc.

·      Stonehenge Club, Inc.

·      Tower City Club of Virginia, Inc.

·      Town Point Club, Inc.

Washington

 

Department of Licensing

 

·      Columbia Tower Club, Inc.

Wisconsin

 

Department of Financial Institutions

 

·      Glendale Management Corp.

·      Glendale Racquet Club, Inc.

 

2. The Trademark Security Agreement, dated as of the date hereof, among ClubCorp USA, Inc., ClubCorp Financial Management Company, ClubCorp Publications, Inc. and Society Management, Inc. for the benefit of the Administrative Agent, will be filed with the United States Patent and Trademark Office (the “USPTO”), Trademark Division.

 

3. The Administrative Agent will conduct a post-closing lien search against each Grantor showing the financing statements filed against the Grantors to be of record.

 

4. The Administrative Agent will receive a file stamped copy of the Trademark Security Agreement filed with the USPTO, Trademark Division showing the Trademark Security Agreement against the applicable Grantors to be of record.

 

 

SCHEDULE 3

 

JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE

 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

191 Athletic Club Management Company, LLC

 

a Delaware limited liability company

 

4618220

 

191 Athletic Club Management Company
c/o Resolution Fitness at 191 Club
191 Peachtree St., 3rd and 49th Floors
Atlanta, GA 30303

 

GA

 

 

 

 

 

 

 

 

 

191 CC Operating Co., LLC

 

a Delaware limited liability company

 

4720529

 

The Commerce Club
191 Peachtree St.
49th Floor
Atlanta, GA 30303

 

GA

 

 

 

 

 

 

 

 

 

Akron Management Corp.

 

an Ohio corporation

 

569519

 

Firestone Country Club
452 East Warner Road
Akron, OH 44319

 

 

 

 

 

 

 

 

 

 

 

Aliso Viejo Golf Club Joint Venture

 

a California general partnership

 

301997170004

 

Aliso Viejo Country Club
25002 Golf Drive
Aliso Viejo, CA 92656

 

 

 

 

 

 

 

 

 

 

 

Anthem Golf, LLC

 

an Arizona limited liability company

 

L13004220

 

Anthem Golf & Country Club
2708 W. Anthem Club Drive
Anthem, AZ 85086

 

 

 

 

 

 

 

 

 

 

 

April Sound Management Corp.

 

A Texas corporation

 

0048141100

 

April Sound Country Club
1000 April Sound Boulevard
Conroe, TX 77356

 

 

 

 

 

 

 

 

 

 

 

Aspen Glen Golf Club Management Company

 

a Colorado corporation

 

19971095258

 

Aspen Glen Club
0545 Bald Eagle Way
Carbondale, CO 81623

 

 

 

 

 

 

 

 

 

 

 

Athletic Club at the Equitable Center, Inc.

 

a New York corporation

 

N/A

 

The Athletic & Swim Club
787 Seventh Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

 

 

AZ Club, LLC

 

a Delaware limited liability company

 

4411309

 

Seville Golf and Country Club
6683 S. Clubhouse Drive
Gilbert, AZ 85298

 

AZ

 

 

 

 

 

 

 

 

 

Barton Creek Resort & Clubs, Inc.

 

a Texas corporation

 

0121615400

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Bay Oaks Country Club, Inc.

 

a Texas corporation

 

0117509500

 

The Club at Bay Oaks
14545 Bay Oaks Boulevard
Houston, TX 77062

 

 

 

 

 

 

 

 

 

 

 

Bear’s Best Atlanta, L.P.

 

a Georgia limited partnership

 

K920098

 

Bears Best Golf Club
5342 Aldeburgh Drive
Swanee, GA 30024

 

 

 

 

 

 

 

 

 

 

 

Bear’s Best Las Vegas, Limited Partnership

 

a Nevada corporation

 

NV19991137280

 

Bears Best Las Vegas
11111 West Flamingo Road
Las Vegas, NV 89035

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Bluegrass Club, LLC

 

a Tennessee limited liability company

 

000502201

 

Bluegrass Yacht and Country Club
550 Johnny Cash Parkway
Hendersonville, TN 37075

 

 

 

 

 

 

 

 

 

 

 

Brookhaven Country Club, Inc.

 

a Texas corporation

 

0014321000

 

Brookhaven Country Club
3333 Golfing Green Drive
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Canyon Gate at Las Vegas, Inc.

 

a Nevada corporation

 

NV19921046515

 

Canyon Gate Country Club
2001 Canyon Gate Drive
Las Vegas, NV 89117

 

 

 

 

 

 

 

 

 

 

 

Capital City Club of Montgomery, Inc.

 

an Alabama corporation

 

045-579

 

Capital City Club of Montgomery
201 Monroe Street
2100 RSA Tower, 21st Floor
Montgomery, AL 36104

 

 

 

 

 

 

 

 

 

 

 

Capital City Club of Raleigh, Inc.

 

a North Carolina corporation

 

0020843

 

Capital City Club
411 Fayetteville St, Suite 2100
Raleigh, NC 27601

 

Cardinal Club
150 Fayetteville St. Mall, Suite 2800
Raleigh, NC 27601

 

 

 

 

 

 

 

 

 

 

 

CCA Club Operations Holdings, LLC

 

a Delaware limited liability company

 

4892852

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

CCA Golf Course Holdco, LLC

 

a Delaware a limited liability company

 

4260903

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

CCA Mezzanine Holdco, LLC

 

a Delaware limited liability company

 

4260905

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

CCS, LLC

 

a Delaware limited liability company

 

4813010

 

Country Club of the South4100 Old Alabama RoadJohns Creek, GA 30022

 

 

 

 

 

 

 

 

 

 

 

Centre Club, Inc.

 

a Florida corporation

 

F69880

 

Centre Club
123 S. Westshore Boulevard, FL 8
Tampa, FL 33601

 

 

 

 

 

 

 

 

 

 

 

Citrus Club, Inc.

 

a Florida corporation

 

366262

 

Citrus Athletic Club
255 S. Orange Avenue
Orlando, FL 32801

 

 

 

 

 

 

 

 

 

 

 

City Club of Washington, Inc.

 

a Washington, D.C. corporation

 

853279

 

City Club of Washington at Columbia Square
555 13th Street NW
Washington, DC 20004

 

City Club of Washington at Franklin Square
1300 I Street NW
Washington, DC 20005

 

 

 

 

 

 

 

 

 

 

 

Club at Boston College, Inc.

 

a Massachusetts corporation

 

752710023

 

Club at Boston College
100 Federal Street, Suite 3600
Boston, MA 02110

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Club de Golf Financiero, S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Marina Vallarta Club de Golf
Fraccionamiento Marina Vallarta
KM 7.5, Carretera Aeropuerto
Puerto Vallarta, Jalisco
Mexico

 

 

 

 

 

 

 

 

 

 

 

Club Le Conte, Inc.

 

a Tennessee corporation

 

000049999

 

Club Le Conte
2700 Plaza Tower
600 S Gay Street
Knoxville, TN 37929

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Airways Golf, Inc.

 

a Delaware corporation

 

4287313

 

Airways Municipal Golf Course
5440 East Airways Blvd.
Fresno, CA 93727

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Aliso Viejo Holding Corp.

 

a Delaware corporation

 

4287336

 

Aliso Viejo Country Club
25002 Golf Drive
Aliso Viejo, CA 92656

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Asia Investments Inc.

 

a Nevada corporation

 

NV19941048531

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Aven Holdings, Inc.

 

a Delaware corporation

 

3374728

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Braemar Country Club, Inc.

 

a Delaware corporation

 

4287323

 

Braemar Country Club
4001 Reseda Blvd.
Tarzana, CA 91356

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Bunker Hill Club, Inc.

 

a Delaware corporation

 

4287335

 

City Club on Bunker Hill
333 S. Grand Ave, Suite 5450
Los Angeles, CA 90071

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Buying Services, Inc.

 

a Delaware corporation

 

3374732

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Canyon Crest Country Club, Inc.

 

a Delaware corporation

 

4287322

 

Canyon Crest Country Club
975 Country Club Drive
Riverside, CA 92506

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Center Club, Inc.

 

a Delaware corporation

 

4287334

 

Center Club
650 Town Center Drive, Garden Level
Costa Mesa, CA 92626

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Club Operations, Inc.

 

a Delaware corporation

 

4892859

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Coto Property Holdings, Inc.

 

a Delaware corporation

 

4287321

 

Coto De Caza Golf & Racquet Club
25291 Vista Del Verde
Coto De Caza, CA 92679

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Crow Canyon Management Corp.

 

a Delaware corporation

 

4287319

 

Crow Canyon Country Club
711 Silverlake Drive
Danville, CA 94526

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Desert Falls Country Club, Inc.

 

a Delaware corporation

 

4287317

 

Desert Falls Country Club
1111 Dessert Falls Pkwy.
Palm Desert, CA 92211

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Financial Management Company

 

a Nevada corporation

 

NV19911057271

 

3030 LBJ Freeway, Suite 600Dallas,
TX 75234

 

AL, AZ, CA, DC, FL, GA, IL, MI, NC, OH, PA, SC, TX, VA, WA

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

ClubCorp GCL Corporation

 

a Delaware corporation

 

4287332

 

Aliso Viejo Country Club
25002 Golf Drive
Aliso Viejo, CA 92656

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Gen Par of Texas, L.L.C.

 

a Delaware limited liability company

 

3016710

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

GA, TX

 

 

 

 

 

 

 

 

 

ClubCorp Golf of California, L.L.C.

 

a Delaware limited liabilty company

 

3016478

 

Morgan Run Resort & Club
5690 Cancha De Golf
Rancho Sante Fe, CA 92091

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Golf of Florida, L.L.C.

 

a Delaware limited liability company

 

3016480

 

East Lake Woodlands Country Club
1020 East Lake Woodlands Parkway
Oldsmar, FL 34677

 

Deercreek Country Club
7816 McLaurin Road N
Jacksonville, FL 32256

 

FL

 

 

 

 

 

 

 

 

 

ClubCorp Golf of Georgia, L.P.

 

a Georgia limited partnership

 

K909940

 

Country Club of Gwinnett
3254 Clubside View Ct.
Snellville, GA 30039

 

Eagle’s Landing Country Club
100 Eagles Landing Way
Stockbridge, GA 30281-5094

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Golf of North Carolina, L.L.C.

 

a Delaware limited liability company

 

3016487

 

Devils Ridge Golf Club
5107 Linksland Drive
Holly Springs, NC 27540

 

Lochmere Golf Club
2511 Kildaire Road
Cary, NC 27511

 

Nags Head Golf Links and Village Beach
5615 South Seachase Drive
Nags Head NC 27959

 

Neuse Golf Club
918 Burkdale Drive
Clayton, NC 27520

 

NC

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

ClubCorp Golf of Texas, L.P.

 

a Texas limited partnership

 

0011786710

 

The Hills at Lakeway
26 Club Estates Parkway
Austin, TX 78738

 

Live Oak Country Club
510 Lakeway Drive
Lakeway, TX 78734

 

Stonebridge Ranch Country Club
7000-03 Beacon Hill
McKinney, TX 75070

 

The Ranch Country Club
5901 Glen Oaks
McKinney, Texas 75070

 

Trophy Club Country Club
500 Trophy Club Drive
Trophy Club, TX 76262

 

Yaupon Country Club
100 Clubhouse Drive
Austin, TX 78734

 

World of Tennis Sports Complex
1 World of Tennis Square
Austin, TX 78738

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Granite Bay Management, Inc.

 

a Delaware corporation

 

4287333

 

3030 LBJ Freeway, Suite 600Dallas, TX 75234

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Graphics, Inc.

 

a Florida Corporation

 

P94000083561

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Hamlet, LLC

 

a Delaware limited liability company

 

4852025

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp International, Inc.

 

a Nevada corporation

 

NV19861001979

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

TX

 

 

 

 

 

 

 

 

 

ClubCorp IW Golf Club, Inc.

 

a Delaware corporation

 

4287329

 

Indian Wells Country Club
46000 Club Drive
Indian Wells, CA 92210

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp LSprings, L.P.

 

a Georgia limited partnership

 

K939253

 

Laurel Springs Golf Club
6400 Golf Club Drive
Suwanee, GA 30024

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Management Company for Stone Creek, LLC

 

a Delaware limited liability company

 

4383327

 

Stone Creek Golf Club
9676 SW 62nd Loop
Ocala, FL 34481

 

FL

 

 

 

 

 

 

 

 

 

ClubCorp Mexico, Inc.

 

a Nevada corporation

 

NV19951156932

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Mezzanine Borrower, LLC

 

a Delaware limited liabilty company

 

4246123

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

ClubCorp Mission Hills Country Club, Inc.

 

a Delaware corporation

 

4287328

 

Mission Hills Country Club
34600 Mission Hills Drive
Rancho Mirage, CA 92270

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Mortgage Borrower, LLC

 

a Delaware limited liability company

 

4246125

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Porter Valley Country Club, Inc.

 

a Delaware corporation

 

4287316

 

Porter Valley Country Club
19216 Singing Hills Drive
Northridge, CA  91326

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Publications, Inc.

 

a Nevada corporation

 

NV19861002958

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

TX

 

 

 

 

 

 

 

 

 

ClubCorp San Jose Club, Inc.

 

a Delaware corporation

 

4287325

 

Silicon Valley Capital Club
50 W San Fernando, Ste 1700
San Jose, CA  95113

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

a Delaware corporation

 

4287311

 

Shadowridge Golf Club
1980 Gateway Drive
Vista, CA  92081

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

a Delaware corporation

 

4287315

 

Spring Valley Lake Country Club
13229 Spring Valley Pkwy.
Victorville, CA  92392

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Symphony Towers Club, Inc.

 

a Delaware corporation

 

4287327

 

University Club Atop Symphony Towers
750 B Street, Suite 3400
San Diego, CA  92101

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp Teal Bend Golf Club, Inc.

 

a Delaware corporation

 

4287326

 

Teal Bend Golf Club
7200 Garden Highway
Sacramento, CA  95837

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp TTC, LLC

 

a Delaware limited liability company

 

4815550

 

Texas Tech Club
Jones AT&T Stadium
2508 6th Street
Lubbock, TX 79409

 

TX

 

 

 

 

 

 

 

 

 

ClubCorp Turkey Creek Golf Club, Inc.

 

a Delaware corporation

 

4287324

 

Turkey Creek Golf Club
1525 State Highway Route 193
Lincoln, CA  95648

 

CA

 

 

 

 

 

 

 

 

 

ClubCorp USA, Inc.

 

a Delaware corporation

 

2089598

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

AL, AZ, CA, CO, FL, GA, IL, LA, PA, TN, TX, VA, WA

 

 

 

 

 

 

 

 

 

ClubCorp Willow Creek, LLC

 

a Delaware limited liability company

 

4852033

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Wind Watch, LLC

 

a Delaware limited liability company

 

4852019

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

ClubCorp - Asia

 

a Nevada corporation

 

NV19911016380

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Columbia Capital City Club Corp.

 

a South Carolina corporation

 

N/A

 

Capital Club, Columbia
1201 Main Street, Suite 2500
Columbia SC 29201

 

 

 

 

 

 

 

 

 

 

 

Columbia Tower Club, Inc.

 

a Washington corporation

 

600604537

 

Columbia Tower Club701 5th Avenue7600 Columbia CenterSeattle, WA  98104

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Countryside Country Club, Inc.

 

A Florida corporation

 

543090

 

Countryside Country Club
3001 Countryside Boulevard
Clearwater, FL  33761

 

 

 

 

 

 

 

 

 

 

 

Currituck Golf, LLC

 

a Delaware limited liability company

 

4267134

 

The Currituck Club
620 Currituck Clubhouse Drive
Corolla, NC  27927

 

NC

 

 

 

 

 

 

 

 

 

Dallas Tower Club, Inc.

 

a Texas corporation

 

0075176400

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Dayton Racquet Club, Inc.

 

an Ohio corporation

 

392974

 

Dayton Racquet Club
40 North Main Street, 40th Floor
Dayton, OH  45402
(Montgomery County)

 

 

 

 

 

 

 

 

 

 

 

DeBary Management Corp.

 

a Florida Corporation

 

P98000029720

 

DeBary Golf & Country Club
300 Plantation Club Drive
Debary, FL  32713

 

 

 

 

 

 

 

 

 

 

 

Diamante’ Golf Club Management, Inc.

 

an Arkansas corporation

 

100109989

 

Diamante Country Club
2000 Country Club Drive
Hot Springs Village, AR 71909

 

 

 

 

 

 

 

 

 

 

 

Diamante’ Golf Club Partners, Inc.

 

an Arkansas corporation

 

100109990

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Diamante’, a Private Membership Golf Club, LLC

 

an Arkansas corporation

 

100110084

 

Diamante Country Club
2000 Country Club Drive
Hot Springs Village, AR 71909

 

 

 

 

 

 

 

 

 

 

 

Diamond Run Club, Inc.

 

a Pennsylvania corporation

 

2846245

 

Diamond Run Golf Club
132 Laurel Oak Drive
Sewickley, PA 15043-9385

 

 

 

 

 

 

 

 

 

 

 

Empire Ranch, LLC

 

a Delaware limited liability company

 

3222651

 

Empire Ranch Golf Club
1620 E. Natoma Street
Folsom, CA 95630

 

CA

 

 

 

 

 

 

 

 

 

Fair Oaks Club Corp.

 

a Texas corporation

 

0101000600

 

Fair Oaks Golf & Country Club
7900 Fair Oaks Parkway
Fair Oaks Ranch, TX  78015

 

 

 

 

 

 

 

 

 

 

 

Farms of New Kent Management, LLC

 

a Delaware limited liability company

 

4330351

 

The Club at Viniterra at New Kent Vinyards
8400 Old Church Road
New Kent, VA 23124

 

VA

 

 

 

 

 

 

 

 

 

FFFC Golf Acquisitions, L.L.C.

 

a Delaware limited liabilty company

 

3002743

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

CA

 

 

 

 

 

 

 

 

 

First City Club Management, Inc.

 

a Georgia corporation

 

J412896

 

First City Club
32 Bull Street, 2nd Floor
Savannah, GA 31401

 

 

 

 

 

 

 

 

 

 

 

Fort Bend Acquisition Corp.

 

a Texas corporation

 

0125454400

 

The Club at Falcon Point
24503 Falcon Point Drive
Katy, TX  77494

 

 

 

 

 

 

 

 

 

 

 

GCC Asset Management, Inc.

 

a Texas corporation

 

0119531600

 

Gleneagles Country Club
5401 West Park Boulevard
Plano, TX  75093

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Glendale Management Corp.

 

a Wisconsin corporation

 

1G10412

 

Le Club
2001 West Good Hope Road
Milaukee, WI 53209

 

 

 

 

 

 

 

 

 

 

 

Glendale Racquet Club, Inc.

 

a Wisconsin corporation

 

1G06538

 

Le Club
Glendale Racquet Club
2001 West Good Hope Road
Glendale, WI  53209

 

 

 

 

 

 

 

 

 

 

 

GP Bear’s Best Atlanta, Inc.

 

a Georgia corporation

 

K920102

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

GP Bear’s Best Las Vegas, Inc.

 

a Nevada corporation

 

NV19991447790

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

GRanch Golf Club, Inc.

 

an Arizona corporation

 

07470104

 

Gainey Ranch Golf Club7600 Gainey Club DriveScottsdale, AZ 85258

 

 

 

 

 

 

 

 

 

 

 

Granite Bay Golf Club, Inc.

 

a Delaware corporation

 

2348596

 

Granite Bay Golf Club
9600 Golf Club Drive A&B
Granite Bay, CA 95746

 

 

 

 

 

 

 

 

 

 

 

Granite Bay Limited Partnership

 

a California limited partnership

 

199324400021

 

Granite Bay Golf Club
9600 Golf Club Drive A&B
Granite Bay, CA 95746

 

 

 

 

 

 

 

 

 

 

 

Greenbrier Country Club, Inc.

 

a Virginia corporation

 

0297684-3

 

Greenbriar Country Club
1301 Volvo Parkway
Chesapeake, VA 23320

 

 

 

 

 

 

 

 

 

 

 

Greenspoint Club, Inc.

 

a Texas corporation

 

0058649900

 

Greenspoint Club
16925 Northchase Drive
Houston, TX  77060

 

 

 

 

 

 

 

 

 

 

 

Hackberry Creek Country Club, Inc.

 

a Texas corporation

 

0062070200

 

Hackberry Creek Country Club
1901-03 W. Royal Lane
Irving, TX 75254

 

 

 

 

 

 

 

 

 

 

 

Haile Plantation Management Corp.

 

a Florida corporation

 

P95000021825

 

Haile Plantation Golf and Country Club
9905 S W 44th Avenue, Suite B
Gainesville, FL  32608

 

 

 

 

 

 

 

 

 

 

 

Harbour Club of Charleston, Inc.

 

a South Carolina corporation

 

N/A

 

Harbour Club
35 Prioleau Street
Charleston, SC 29401

 

 

 

 

 

 

 

 

 

 

 

Hearthstone Country Club, Inc.

 

a Texas corporation

 

0041026800

 

Hearthstone Country Club
7615 Ameswood Road
Houston, TX 77038

 

 

 

 

 

 

 

 

 

 

 

Hill Country Golf, Inc.

 

a Texas corporation

 

035694900

 

Lost Creek Country Club
2612 Lost Creek Blvd
Austin, TX 78746

 

 

 

 

 

 

 

 

 

 

 

Hills II of Lakeway, Inc.

 

a Texas corporation

 

0154962200

 

Flintrock Falls Golf Course
401 Jack Nicklaus Drive
Lakeway, TX  78738

 

 

 

 

 

 

 

 

 

 

 

Houston City Club, Inc.

 

a Texas corporation

 

0043796800

 

The Houston City Club
1 City Club Drive
Houston, TX  77046

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

HPG, L.C.

 

a Florida limited liability company

 

L92000000062

 

9905 S W 44th Avenue, Suite B
Gainesville, FL  32608

 

 

 

 

 

 

 

 

 

 

 

Hunter’s Green Acquisition Corp.

 

a Florida corporation

 

P95000088598

 

Hunters Green Country Club
18050 Hunters Oak Court
Tampa, FL  33647

 

 

 

 

 

 

 

 

 

 

 

Indigo Run Asset Corp.

 

a South Carolina corporation

 

N/A

 

Golden Bear Club at Indigo Run
72 Golden Bear Way
Hilton Head Island, SC 29926

 

The Golf Club at Indigo Run
101 Berwick Drive
Hilton Head Island
Beaufort, SC  20026

 

 

 

 

 

 

 

 

 

 

 

Irving Club Acquisition Corp.

 

a Texas corporation

 

0123155500

 

Las Colinas Country Club
4400 N. O’Connor Road
Irving, TX  75062

 

 

 

 

 

 

 

 

 

 

 

Isla Maya Club de Golf S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Cozumel Country Club
Carretera Costera Norte KM. 6.5
Interior Casa Club
Cozumel, Quintana Roo
Mexico  77600

 

 

 

 

 

 

 

 

 

 

 

Kingwood Country Club, Inc.

 

a Texas corporation

 

0030577700

 

The Club at Deerwood
1717 Forest Garden
Houston, TX  77345

 

Kingwood Country Club
1700 Lake Kingwood Trail
Kingwood, TX  77339

 

 

 

 

 

 

 

 

 

 

 

Knollwood Country Club, Inc.

 

an Indiana corporation

 

198301-750

 

Knollwood Country Club
16633 Baywood Lane
Granger, IN  46530

 

 

 

 

 

 

 

 

 

 

 

La Cima Club, Inc.

 

a Texas corporation

 

0069336600

 

La Cima Club5215 North O’Connor Road, 26th FloorIrving, TX  75063

 

 

 

 

 

 

 

 

 

 

 

Lakeway Clubs, Inc.

 

a Texas corporation

 

0134589100

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Laurel Springs Holdco, LLC

 

a Delaware limited liability company

 

4267129

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

LionsGate Golf Club, Inc.

 

a Kansas corporation

 

2677789

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

MAC Club, LLC

 

a Delaware limited liability company

 

4246384

 

Mid-America Club
200 East Randolph Drive, 80th Floor
Chicago, IL 60601

 

IL

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Management Company for Eagle Ridge and The Preserve

 

a Florida corporation

 

V15162

 

Eagle Ridge Golf Club
13605 Del Webb Boulevard
Summerfield, FL  34491

 

The Preserve Golf Club
13601 SW 115th Avenue
Dunnellon, FL  33432-5621

 

 

 

 

 

 

 

 

 

 

 

Manager for CCHH, Inc.

 

a South Carolina corporation

 

N/A

 

Country Club of Hilton Head
70 Skull Creek Drive
Hilton Head Island, SC 29926-1305

 

 

 

 

 

 

 

 

 

 

 

Master Club, Inc.

 

a Nevada corporation

 

NV19991145904

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

CO, SC, TX, VA

 

 

 

 

 

 

 

 

 

Memorial Stadium Club Management Corp.

 

a Texas corporation

 

0149161200

 

The University of Texas Club
2108 Robert Dedman Drive
Texas Memorial Stadium
Austin, TX  78705

 

 

 

 

 

 

 

 

 

 

 

Memphis City Club, Inc.

 

a Tennessee corporation

 

188828

 

The Crescent Club
6075 Poplar Avenue, Suite 909
Memphis, TN  38119

 

 

 

 

 

 

 

 

 

 

 

MH Villas, Inc.

 

a California corporation

 

C1972136

 

34-600 Mission Hills Dr.
Rancho Mirage, CA 92270

 

 

 

 

 

 

 

 

 

 

 

Monarch Country Club, Inc.

 

a Florida corporation

 

P93000022585

 

Monarch Country Club
1801 SW Monarch Club Drive
Palm City, FL  34990

 

 

 

 

 

 

 

 

 

 

 

Monarch EP Management Corp. (Manager)

 

a Florida corporation

 

P94000086348

 

Monarch Country Club
1801 SW Monarch Club Drive
Palm City, FL  34990

 

 

 

 

 

 

 

 

 

 

 

Nashville Club Management, Inc.

 

a Tennessee corporation

 

000143206

 

Nashville City Club
201 Fouth Avenue North, 20th Floor
Nashville, TN 32719

 

 

 

 

 

 

 

 

 

 

 

New England Country Club Management, Inc.

 

a Massachusetts corporation

 

752481683

 

Ipswich Country Club
148 Country Club Way
Ipswich, MA 01938

 

 

 

 

 

 

 

 

 

 

 

Nicklaus Golf Club, L.P. at LionsGate

 

a Kansas limited partnership

 

2677813

 

Nicklaus Golf Club at Lionsgate
14225 Dearborn Avenue
Overland Park, KS  06223

 

 

 

 

 

 

 

 

 

 

 

Northwood Management Corp.

 

a Georgia corporation

 

H810514

 

Northwood Country Club
3157 Club Dr.
Lawrenceville, GA  30044-2523

 

 

 

 

 

 

 

 

 

 

 

Oak Pointe Country Club, Inc.

 

a Michigan corporation

 

399319

 

Oak Pointe Country Club
4500 Club
Brighton, MI  48116

 

 

 

 

 

 

 

 

 

 

 

Oakmont Management Corp.

 

a Texas corporation

 

0125110800

 

Oakmont Country Club
1200 Club House Drive
Corinth, TX  76205

 

 

 

 

 

 

 

 

 

 

 

Operations Company for Homestead, Inc.

 

a Virginia corporation

 

0420045-7

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Owners Club Asset Company

 

a Delaware corporation

 

2874734

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

TX

 

 

 

 

 

 

 

 

 

Piedmont Club, Inc.

 

a North Carolina corporation

 

0177704

 

Piedmont Club
200 W. Second Street, 19th Floor
Winston-Salem, NC 27101

 

 

 

 

 

 

 

 

 

 

 

Piedmont Golfers’ Club LLC

 

a South Carolina limited liability company

 

N/A

 

Piedmont Golfers’ Club 14675 Piedmont Vista DriveHaymarket, VA  20169

 

VA

 

 

 

 

 

 

 

 

 

Promociones Turisticas Professionales, S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Marina Vallarta Club de Golf
Fraccionamiento Marina Vallarta
KM 7.5, Carretera Aeropuerto
Puerto Vallarta, Jalisco
Mexico

 

 

 

 

 

 

 

 

 

 

 

Pyramid Club Management, Inc.

 

a Pennsylvania corporation

 

2005042

 

Pyramid Club
1735 Market Street, 52nd Floor
Philadelphia, PA  19103

 

 

 

 

 

 

 

 

 

 

 

Quail Hollow Management, Inc.

 

an Ohio corporation

 

619437

 

Quail Hollow Country Club
11295 Quail Hollow Drive
Concord, OH 44077

 

 

 

 

 

 

 

 

 

 

 

Queens Harbour Corporation

 

a Florida corporation

 

P93000073558

 

Queens Harbour Yacht and Country Club
1131 Queens Harbour Boulevard
Jacksonville, FL  32201

 

 

 

 

 

 

 

 

 

 

 

Renaissance Club, Inc.

 

a Michigan corporation

 

005701

 

Renaissance Club
200 Renaissance Center, Suite 3600
Detroit, MI  48243

 

Skyline Club
2800 Town Center, 28th Floor
Southfield, MI  48075

 

 

 

 

 

 

 

 

 

 

 

Richardson Country Club Corp.

 

a Texas corporation

 

0028684700

 

Canyon Creek Country Club
625 Lookout Drive
Richardson, TX  75080

 

 

 

 

 

 

 

 

 

 

 

River Creek Country Club, Inc.

 

a Virginia corporation

 

0455558-7

 

The River Creek Club
43800 Olympic Blvd.
Leesburg, VA 20176

 

 

 

 

 

 

 

 

 

 

 

Rivers Club, Inc.

 

a Pennsylvania corporation

 

754667

 

Rivers Club
One Oxford Center
301 Grant Street
Pittsburgh, PA  15219

 

 

 

 

 

 

 

 

 

 

 

Shady Valley Management Corp.

 

a Texas corporation

 

0121648100

 

Shady Valley Golf Club
4001 West Park Row
Arlington, TX 76013

 

 

 

 

 

 

 

 

 

 

 

Shoreby Club Management, Inc.

 

an Ohio corporation

 

737760

 

Shoreby Club
40 Shoreby Drive
Bratenahl, OH 44108

 

 

 

 

 

 

 

 

 

 

 

Silver Lake Management Corp.

 

an Ohio corporation

 

750102

 

Silver Lake Country Club
1325 Graham Road
Cuyahoga Falls, OH  44224

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Skyline Club, Inc.

 

an Indiana corporation

 

198010-919

 

Skyline Club
One American Square, 36th Floor
Indianapolis, IN  46204

 

 

 

 

 

 

 

 

 

 

 

Society Management, Inc.

 

a Nevada corporation

 

NV19961101747

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

AZ, CA, DC, FL, GA, HI, IL, IN, LA, MI, NC, OH, PA, TX, WA

 

 

 

 

 

 

 

 

 

Southern Trace Country Club of Shreveport, Inc.

 

a Louisiana corporation

 

34379228D

 

Southern Trace Country Club
200 South Trace Parkway
Shreveport, LA  71106

 

 

 

 

 

 

 

 

 

 

 

Stonebriar Club, Inc.

 

a Texas corporation

 

0130186100

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Stonebriar Country Club Joint Venture

 

a Texas general partnership

 

0029491380

 

Stonebriar Country Club
5050 Country Club Drive
Frisco, TX  75034

 

 

 

 

 

 

 

 

 

 

 

Stonebriar Management Corp.

 

a Texas corporation

 

0130186200

 

Stonebriar Country Club
5050 Country Club Drive
Frisco, TX  75034

 

 

 

 

 

 

 

 

 

 

 

Stonebriar Management Holdings, LLC

 

a Delaware limited liability company

 

4410767

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Stonehenge Club, Inc.

 

a Virginia corporation

 

0443288-6

 

Stonehenge Golf and Country Club1000 Farnham DriveRichmond, VA 23236

 

 

 

 

 

 

 

 

 

 

 

Tampa Palms Club, Inc.

 

a Florida corporation

 

P92000009945

 

Tampa Palms Golf & Country Club
5811 Tampa Palms Boulevard
Tampa, FL 33647

 

 

 

 

 

 

 

 

 

 

 

The 191 Club, Inc.

 

a Georgia corporation

 

K020225

 

The 191 Club
191 Peachtree St NE, 49th Floor
Atlanta, GA 30303

 

 

 

 

 

 

 

 

 

 

 

The Buckhead Club, Inc.

 

a Georgia corporation

 

J604030

 

Buckhead Club
3344 Peachtree Road NE, 26th Floor
Atlanta, GA 30326

 

 

 

 

 

 

 

 

 

 

 

The Club at Cimarron, Inc.

 

a Texas corporation

 

0116636700

 

The Club at Cimarron
1200 S. Shary Road
Mission, TX  78572

 

 

 

 

 

 

 

 

 

 

 

The Club at Society Center, Inc.

 

an Ohio corporation

 

761299

 

Club at Key Center
Marriott Building
127 Public Square, 4th Floor
Cleveland, OH  44114

 

 

 

 

 

 

 

 

 

 

 

The Commerce Club, Inc.

 

a South Carolina corporation

 

N/A

 

Commerce Club
1 Liberty Square, Floor 17
Greenville, SC 29601

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

The Downtown Club, Inc.

 

a Texas corporation

 

0036254500

 

The Houston Center Club at Downtown
1100 Caroline, 11th Floor
Houston, TX  77002

 

The Met Business and Sports Club at Downtown
One Allen Center, 6th Floor
340 West Dallas
Houston, TX  77002

 

The Plaza Club at Downtown
910 Louisiana, 49th Floor
Houston, TX  77002

 

 

 

 

 

 

 

 

 

 

 

The Manager of the Owner’s Club, Inc.

 

a South Carolina corporation

 

 

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

The Metropolitan Club of Chicago, Inc.

 

an Illinois corporation

 

50149366

 

The Metropolitan Club
233 S. Wacker Drive, 67th Floor
Chicago, IL  60606

 

 

 

 

 

 

 

 

 

 

 

The Owner’s Club, Inc.

 

a Delaware corporation

 

2514425

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

VA

 

 

 

 

 

 

 

 

 

The Owner’s Club at Hilton Head, L.P.

 

a South Carolina limited partnership

 

N/A

 

22 Aberdeen Court
Hilton Head Island, SC 29926

 

GA

 

 

 

 

 

 

 

 

 

The Owner’s Club of South Carolina, L.L.C.

 

a Delaware limited liability company

 

2444295

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

SC

 

 

 

 

 

 

 

 

 

The Plaza Club of San Antonio, Inc.

 

a Texas corporation

 

0031184600

 

Plaza Club of San Antonio
100 W. Houston Street, Suite 2100
San Antonio, TX  78205

 

 

 

 

 

 

 

 

 

 

 

The Summit Club, Inc.

 

an Alabama corporation

 

129-744

 

The Summit Club
1901 6th Avenue, Suite 3100
Birmingham, AL 35203

 

 

 

 

 

 

 

 

 

 

 

The University Club, Inc.

 

a Mississippi corporation

 

400520

 

University Club
210 E. Capital St., Ste 2200, Jackson, Mississippi 39201

 

 

 

 

 

 

 

 

 

 

 

Timarron Golf Club, Inc.

 

a Texas corporation

 

0139219400

 

Timarron Country Club
1400 Byron Nelson Parkway
SouthLake, TX 76092

 

 

 

 

 

 

 

 

 

 

 

Tower City Club of Virginia, Inc.

 

a Virginia corporation

 

0412515-9

 

The Tower Club
Tyson’s Corner
8000 Towers Crescent Dr., Ste 1700
Vienna, VA 22182

 

 

 

 

 

 

 

 

 

 

 

Tower Club of Dallas, Inc.

 

a Texas corporation

 

0055340000

 

Dallas Tower Club
1601 Elm Street, 48th Floor
Dallas, TX 75201

 

 

 

 

 

 

 

 

 

 

 

Tower Club, Inc.

 

a Florida corporation

 

412767

 

Tower ClubOne Financial Plaza, 28th FloorFort Lauderdale, FL 33394

 

 

 

 

 

 

 

 

 

 

 

Town Point Club, Inc.

 

a Virginia corporation

 

0234714-4

 

Town Point Club
World Trade Center, Suite 300
101 W. Main St.
Norfolk, VA 23510

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

Treesdale Country Club, Inc.

 

a Pennsylvania corporation

 

2529394

 

Treesdale Country Club
One Arnold Palmer Drive
Gibsonia, PA  15044

 

 

 

 

 

 

 

 

 

 

 

UMass Club Management, LLC

 

a Delaware limited liability company

 

4000336

 

University of Masachusetts Club
225 Franklin Street
Boston, Massachusetts 02100

 

MA

 

 

 

 

 

 

 

 

 

UNC Alumni Club Management, Inc.

 

a North Carolina corporation

 

0301930

 

Carolina Club
George Watts Hill Alumni Center
Stadium Drive at Ridge Road
P.O. Box 111
Chapel Hill, NC 27514

 

 

 

 

 

 

 

 

 

 

 

University Club Management Co., Inc.

 

a Florida corporation

 

P96000053175

 

University Center Club
Doak Campbell Stadium
Florida State University
Tallahassee, Fl 32306

 

 

 

 

 

 

 

 

 

 

 

University Club, Inc.

 

a Florida corporation

 

321779

 

University Club
1301 Riverplace Boulevard, #2516
Jacksonville, FL 32207

 

 

 

 

 

 

 

 

 

 

 

Walnut Creek Management Corporation

 

a Texas corporation

 

0036899300

 

Walnut Creek Country Club
1151 Country Club Drive
Mansfield, TX  76063

 

 

 

 

 

 

 

 

 

 

 

West Park Club, Inc.

 

a Texas corporation

 

0110499300

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

 

 

 

 

 

 

 

 

Westlake City Club, Inc.

 

a Texas corporation

 

0059258400

 

The WestLake Club
570 Westlake Park Boulevard
6th, 7th & 8th Levels
Houston, TX  77079

 

 

 

 

 

 

 

 

 

 

 

Wildflower Country Club, Inc.

 

a Texas corporation

 

0074632100

 

Wildflower Country Club
4902 Wildflower Lane
Temple, TX  76502

 

 

 

 

 

 

 

 

 

 

 

Willow Creek Management, Inc.

 

a Texas corporation

 

0129183100

 

Willow Creek Golf Club
24525 Northcrest
Spring, TX  77389

 

 

 

 

 

 

 

 

 

 

 

Woodside Plantation Country Club, Inc.

 

a South Carolina corporation

 

N/A

 

Woodside Plantation Country Club
1000 Woodside Plantation
Aiken, SC  29803

 

 

 

 

 

 

 

 

 

 

 

La Vista Club de Golf S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Vista Vallarta Golf Club
Circuito Universidad 653
Col. San Nicholas C.P. 48390
Puerto Vallarta, Jalisco
Mexico  48354

 

 

 

 

 

 

 

 

 

 

 

CG Desarrolladora, S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Marina Vallarta Club de Golf
Fraccionamiento Marina Vallarta
KM 7.5, Carretera Aeropuerto
Puerto Vallarta, Jalisco
Mexico

 

 

 

 

 

 

 

 

 

 

 

CG Inversiones S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Marina Vallarta Club de Golf
Fraccionamiento Marina Vallarta
KM 7.5, Carretera Aeropuerto
Puerto Vallarta, Jalisco
Mexico

 

 

 


 

LEGAL ENTITY NAME

 

Jurisdiction of
Formation
and Type of
Entity

 

Organizational
Identification
Number

 

Chief Executive Office or Sole
Place of Business

 

Additional
Jurisdictions
where
Qualified to do
business

 

 

 

 

 

 

 

 

 

CCG Club de Golf, S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Marina Vallarta Club de Golf
Fraccionamiento Marina Vallarta
KM 7.5, Carretera Aeropuerto
Puerto Vallarta, Jalisco
Mexico

 

 

 

 

 

 

 

 

 

 

 

ClubCorp Latin America, S.A. de C.V.

 

a foreign corporation, Mexico

 

N/A

 

Marina Vallarta Club de Golf
Fraccionamiento Marina Vallarta
KM 7.5, Carretera Aeropuerto
Puerto Vallarta, Jalisco
Mexico

 

 

 

 

SCHEDULE 4

 

LOCATION OF INVENTORY AND EQUIPMENT

 

GRANTOR

 

LOCATIONS

 

 

 

191 Athletic Club Management Company, LLC

 

191 Athletic Club Management Company
c/o Resolution Fitness at 191 Club
191 Peachtree St. 3rd Floor
Atlanta, GA 30303

 

 

 

191 CC Operating Co., LLC

 

The Commerce Club
191 Peachtree St., 49th Floor
Atlanta, GA 30303

 

 

 

Akron Management Corp.

 

Firestone Country Club
452 East Warner Road
Akron, OH 44319

 

 

 

Aliso Viejo Golf Club Joint Venture

 

Aliso Viejo Country Club
25002 Golf Drive
Aliso Viejo, CA 92656

 

 

 

Anthem Golf, LLC

 

Anthem Golf & Country Club
2708 W. Anthem Club Drive
Anthem, AZ 85086

 

 

 

April Sound Management Corp.

 

April Sound Country Club
1000 April Sound Boulevard
Conroe, TX 77356

 

 

 

Aspen Glen Golf Club Management Company

 

Aspen Glen Club
0545 Bald Eagle Way
Carbondale, CO 81623

 

 

 

Athletic Club at the Equitable Center, Inc.

 

The Athletic & Swim Club
787 Seventh Avenue
New York, New York 10019

 

 

 

AZ Club, LLC

 

Seville Golf and Country Club
6683 S. Clubhouse Drive
Gilbert, AZ 85298

 

 

 

Barton Creek Resort & Clubs, Inc.

 

Barton Creek Country Club - Fazio II
4201 Barton Creek Blvd.
Austin, TX 78735

 

 

 

Bay Oaks Country Club, Inc.

 

The Club at Bay Oaks
14545 Bay Oaks Boulevard
Houston, TX 77062

 

 

 

Bluegrass Club, LLC

 

Bluegrass Yacht and Country Club
550 Johnny Cash Parkway
Hendersonville, TN 37075

 

 

 

Brookhaven Country Club, Inc.

 

Brookhaven Country Club
3333 Golfing Green Drive
Dallas, TX 75234

 

 

 

Canyon Gate at Las Vegas, Inc.

 

Canyon Gate Country Club
2001 Canyon Gate Drive
Las Vegas, NV 89117

 

 

 

Capital City Club of Montgomery, Inc.

 

Capital City Club of Montgomery
201 Monroe Street
2100 RSA Tower, 21st Floor
Montgomery, AL 36104

 


 

GRANTOR

 

LOCATIONS

 

 

 

Capital City Club of Raleigh, Inc.

 

Capital City Club
411 Fayetteville St, Suite 2100
Raleigh, NC 27601

Cardinal Club
150 Fayetteville St. Mall, Suite 2800
Raleigh, NC 27601

 

 

 

CCA Club Operations Holding, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

CCA Golf Course Holdco, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

CCA Mezzanine Holdco, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Centre Club, Inc.

 

Centre Club
123 S. Westshore Boulevard, FL 8
Tampa, FL 33601

 

 

 

Citrus Club, Inc.

 

Citrus Athletic Club
255 S. Orange Avenue
Orlando, FL 32801

 

 

 

City Club of Washington, Inc.

 

City Club of Washington at Columbia Square
555 13th Street NW
Washington, DC 20004

City Club of Washington at Franklin Square
1300 I Street NW
Washington, DC 20005

 

 

 

Club at Boston College, Inc.

 

Club at Boston College
100 Federal Street, Suite 3600
Boston, MA 02110

 

 

 

Club Le Conte, Inc.

 

Club Le Conte
2700 Plaza Tower
600 S Gay Street
Knoxville, TN 37929

 

 

 

ClubCorp Airways Golf, Inc.

 

Airways Municipal Golf Course
5440 East Airways Blvd.
Fresno, CA 93727

 

 

 

ClubCorp Aliso Viejo Holding Corp.

 

Aliso Viejo Country Club
25002 Golf Drive
Aliso Viejo, CA 92656

 

 

 

ClubCorp Asia Investments Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Aven Holdings, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Braemar Country Club, Inc.

 

Braemar Country Club

4001 Reseda Blvd.
Tarzana, CA 91356

 

 

 

ClubCorp Bunker Hill Club, Inc.

 

City Club on Bunker Hill
333 S. Grand Ave, Suite 5450
Los Angeles, CA 90071

 

 

 

ClubCorp Buying Services, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Canyon Crest Country Club, Inc.

 

Canyon Crest Country Club

975 Country Club Drive
Riverside, CA 92506

 


 

GRANTOR

 

LOCATIONS

 

 

 

ClubCorp Center Club, Inc.

 

Center Club
650 Town Center Drive, Garden Level
Costa Mesa, CA 92626

 

 

 

ClubCorp Club Operations, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Coto Property Holdings, Inc.

 

Coto De Caza Golf & Racquet Club
25291 Vista Del Verde
Coto De Caza, CA 92679

 

 

 

ClubCorp Crow Canyon Management Corp.

 

Crow Canyon Country Club
711 Silverlake Drive
Danville, CA 94526

 

 

 

ClubCorp Desert Falls Country Club, Inc.

 

Desert Falls Country Club
1111 Dessert Falls Pkwy.
Palm Desert, CA 92211

 

 

 

ClubCorp Financial Management Company

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp GCL Corporation

 

Aliso Viejo Country Club
25002 Golf Drive
Aliso Viejo, CA 92656

 

 

 

ClubCorp Gen Par of Texas, L.L.C.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Golf of California, L.L.C.

 

Morgan Run Resort & Club
5690 Cancha De Golf
Rancho Sante Fe, CA 92091

 

 

 

ClubCorp Golf of Florida, L.L.C.

 

East Lake Woodlands Country Club
1020 East Lake Woodlands Parkway
Oldsmar, FL 34677

Deercreek Country Club
7816 McLaurin Road N
Jacksonville, FL 32256

 

 

 

ClubCorp Golf of Georgia, L.P.

 

Country Club of Gwinnett
3254 Clubside View Ct.
Snellville, GA 30039

Eagle’s Landing Country Club
100 Eagles Landing Way
Stockbridge, GA 30281-5094

 

 

 

ClubCorp Golf of North Carolina, L.L.C.

 

Devils Ridge Golf Club
5107 Linksland Drive
Holly Springs, NC 27540

Lochmere Golf Club
2511 Kildaire Road
Cary, NC 27511

Nags Head Golf Links and Village Beach
5615 South Seachase Drive
Nags Head NC 27959

Neuse Golf Club
918 Burkdale Drive
Clayton, NC 27520

 


 

GRANTOR

 

LOCATIONS

 

 

 

ClubCorp Golf of Texas, L.P.

 

The Hills at Lakeway
26 Club Estates Parkway
Austin, TX 78738

Live Oak Country Club
510 Lakeway Drive
Lakeway, TX 78734

Stonebridge Ranch Country Club
7000-03 Beacon Hill
McKinney, TX 75070

The Ranch Country Club
5901 Glen Oaks
McKinney, Texas 75070

Trophy Club Country Club
500 Trophy Club Drive
Trophy Club, TX 76262

Yaupon Country Club
100 Clubhouse Drive
Austin, TX 78734

World of Tennis Sports Complex
1 World of Tennis Square
Austin, TX 78738

 

 

 

ClubCorp Granite Bay Management, Inc.

 

Granite Bay Golf Club
9600 Golf Club Drive A&B
Granite Bay, CA 95746

 

 

 

ClubCorp Graphics, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Hamlet, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp International, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp IW Golf Club, Inc.

 

Indian Wells Country Club
46000 Club Drive
Indian Wells, CA 92210

 

 

 

ClubCorp Management Company for Stone Creek, LLC

 

Stone Creek Golf Club
9676 SW 62nd Loop
Ocala, FL 34481

 

 

 

ClubCorp Mexico, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Mezzanine Borrower, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Mission Hills Country Club, Inc.

 

Mission Hills Country Club
34600 Mission Hills Drive
Rancho Mirage, CA 92270

 

 

 

ClubCorp Mortgage Borrower, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Porter Valley Country Club, Inc.

 

Porter Valley Country Club
19216 Singing Hills Drive
Northridge, CA 91326

 


 

GRANTOR

 

LOCATIONS

 

 

 

ClubCorp Publications, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp San Jose Club, Inc.

 

Silicon Valley Capital Club
50 W San Fernando Ste 1700
San Jose, CA 95113

 

 

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

Shadowridge Golf Club
1980 Gateway Drive
Vista, CA 92081

 

 

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

Spring Valley Lake Country Club
13229 Spring Valley Pkwy.
Victorville, CA 92392

 

 

 

ClubCorp Symphony Towers Club, Inc.

 

University Club Atop Symphony Towers
750 B Street, Suite 3400
San Diego, CA 92101

 

 

 

ClubCorp Teal Bend Golf Club, Inc.

 

Teal Bend Golf Club
7200 Garden Highway
Sacramento, CA 95837

 

 

 

ClubCorp TTC, LLC

 

Texas Tech Club
Jones AT&T Stadium
2508 6th Street
Lubbock, TX 79409

 

 

 

ClubCorp Turkey Creek Golf Club, Inc.

 

Turkey Creek Golf Club
1525 State Highway Route 193
Lincoln, CA 95648

 

 

 

ClubCorp USA, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Willow Creek, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp Wind Watch, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

ClubCorp - Asia

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Columbia Capital City Club Corp.

 

Capital Club, Columbia
1201 Main Street, Suite 2500
Columbia SC 29201

 

 

 

Columbia Tower Club, Inc.

 

Columbia Tower Club
701 5th Avenue
7600 Columbia Center
Seattle, WA 98104

 

 

 

Countryside Country Club, Inc.

 

Countryside Country Club
3001 Countryside Boulevard
Clearwater, FL 33761

 

 

 

Currituck Golf, LLC

 

The Currituck Club
620 Currituck Clubhouse Drive
Corolla, NC 27927

 

 

 

Dallas Tower Club, Inc.

 

Dallas Tower Club
1601 Elm Street, 48th Floor
Dallas, TX 75201

 

 

 

Dayton Racquet Club, Inc.

 

Dayton Racquet Club
40 North Main Street, 40th Floor
Dayton, OH 45402

 

 

 

DeBary Management Corp.

 

DeBary Golf & Country Club
300 Plantation Club Drive
Debary, FL 32713

 


 

GRANTOR

 

LOCATIONS

 

 

 

Diamante’ Golf Club Management, Inc.

 

Diamante Country Club
2000 Country Club Drive
Hot Springs Village, AR 71909

 

 

 

Diamante’ Golf Club Partners, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Diamond Run Club, Inc.

 

Diamond Run Golf Club
132 Laurel Oak Drive
Sewickley, PA 15043-9385

 

 

 

Empire Ranch, LLC

 

Empire Ranch Golf Club
1620 E. Natoma Street
Folsom, CA 95630

 

 

 

Fair Oaks Club Corp.

 

Fair Oaks Golf & Country Club
7900 Fair Oaks Parkway
Fair Oaks Ranch, TX 78015

 

 

 

Farms of New Kent Management, LLC

 

The Club at Viniterra at New Kent Vinyards
8400 Old Church Road
New Kent, VA 23124

 

 

 

FFFC Golf Acquisitions, L.L.C.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

First City Club Management, Inc.

 

First City Club
32 Bull Street, 2nd Floor
Savannah, GA 31401

 

 

 

Fort Bend Acquisition Corp.

 

The Club at Falcon Point
24503 Falcon Point Drive
Katy, TX 77494

 

 

 

GCC Asset Management, Inc.

 

Gleneagles Country Club
5401 West Park Boulevard
Plano, TX 75093

 

 

 

Glendale Management Corp.

 

Le Club
2001 West Good Hope Road
Milaukee, WI 53209

 

 

 

Glendale Racquet Club, Inc.

 

Le Club
Glendale Racquet Club
2001 West Good Hope Road
Glendale, WI 53209

 

 

 

GP Bear’s Best Atlanta, Inc.

 

Bears Best Golf Club
5342 Aldeburgh Drive
Suwanee, GA 30024

 

 

 

GP Bear’s Best Las Vegas, Inc.

 

Bears Best Las Vegas
11111 West Flamingo Road
Las Vegas, NV 89035

 

 

 

GRanch Golf Club, Inc.

 

Gainey Ranch Golf Club
7600 Gainey Club Drive
Scottsdale, AZ 85258

 

 

 

Greenbrier Country Club, Inc.

 

Greenbriar Country Club
1301 Volvo Parkway
Chesapeake, VA 23320

 

 

 

Greenspoint Club, Inc.

 

Greenspoint Club
16925 Northchase Drive
Houston, TX 77060

 

 

 

Hackberry Creek Country Club, Inc.

 

Hackberry Creek Country Club
1901-03 W. Royal Lane
Irving, TX 75254

 


 

GRANTOR

 

LOCATIONS

 

 

 

Haile Plantation Management Corp.

 

Haile Plantation Golf and Country Club
9905 S W 44th Avenue, Suite B
Gainesville, FL 32608

 

 

 

Harbour Club of Charleston, Inc.

 

Harbour Club
35 Prioleau Street
Charleston, SC 29401

 

 

 

Hearthstone Country Club, Inc.

 

Hearthstone Country Club
7615 Ameswood Road
Houston, TX 77038

 

 

 

Hill Country Golf, Inc.

 

Lost Creek Country Club
2612 Lost Creek Blvd
Austin, TX 78746

 

 

 

Hills II of Lakeway, Inc.

 

Flintrock Falls Golf Course
401 Jack Nicklaus Drive
Lakeway, TX 78738

 

 

 

Houston City Club, Inc.

 

The Houston City Club
1 City Club Drive
Houston, TX 77046

 

 

 

HPG, L.C.

 

9905 S W 44th Avenue, Suite B
Gainesville, FL 32608

 

 

 

Hunter’s Green Acquisition Corp.

 

Hunters Green Country Club
18050 Hunters Oak Court
Tampa, FL 33647

 

 

 

Indigo Run Asset Corp.

 

Golden Bear Club at Indigo Run
72 Golden Bear Way
Hilton Head Island, SC 29926

The Golf Club at Indigo Run
101 Berwick Drive
Hilton Head Island
Beaufort, SC 20026

 

 

 

Irving Club Acquisition Corp.

 

Las Colinas Country Club
4400 N. O’Connor Road
Irving, TX 75062

 

 

 

Kingwood Country Club, Inc.

 

The Club at Deerwood
1717 Forest Garden
Houston, TX 77345

 

Kingwood Country Club
1700 Lake Kingwood Trail
Kingwood, TX 77339

 

 

 

Knollwood Country Club, Inc.

 

Knollwood Country Club
16633 Baywood Lane
Granger, IN 46530

 

 

 

La Cima Club, Inc.

 

La Cima Club
5215 North O’Connor Road, 26th Floor
Irving, TX 75063

 

 

 

Lakeway Clubs, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Laurel Springs Holdco, LLC

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

LionsGate Golf Club, Inc.

 

Nicklaus Golf Club at LionsGate
14225 Dearborn Avenue
Overland Park, KS 06223

 


 

GRANTOR

 

LOCATIONS

 

 

 

MAC Club, LLC

 

Mid-America Club
200 East Randolph Drive, 80th Floor
Chicago, IL 60601

 

 

 

Management Company for Eagle Ridge and The Preserve

 

Eagle Ridge Golf Club
13605 Del Webb Boulevard
Summerfield, FL 34491

The Preserve Golf Club
13601 SW 115th Avenue
Dunnellon, FL 33432-5621

 

 

 

Manager for CCHH, Inc.

 

Country Club of Hilton Head
70 Skull Creek Drive
Hilton Head Island, SC 29926-1305

 

 

 

Master Club, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Memorial Stadium Club Management Corp.

 

The University of Texas Club
2108 Robert Dedman Drive
Texas Memorial Stadium
Austin, TX 78705

 

 

 

Memphis City Club, Inc.

 

The Crescent Club
6075 Poplar Avenue, Suite 909
Memphis, TN 38119

 

 

 

MH Villas, Inc.

 

34-600 Mission Hills Dr.
Rancho Mirage, CA 92270

 

 

 

Monarch EP Management Corp.

 

Monarch Country Club
1801 SW Monarch Club Drive
Palm City, FL 34990

 

 

 

Nashville Club Management, Inc.

 

Nashville City Club
201 Fouth Avenue North, 20th Floor
Nashville, TN 32719

 

 

 

New England Country Club Management, Inc.

 

Ipswich Country Club
148 Country Club Way
Ipswich, MA 01938

 

 

 

Northwood Management Corp.

 

Northwood Country Club
3157 Club Dr.
Lawrenceville, GA 30044-2523

 

 

 

Oak Pointe Country Club, Inc.

 

Oak Pointe Country Club
4500 Club
Brighton, MI 48116

 

 

 

Oakmont Management Corp.

 

Oakmont Country Club
1200 Club House Drive
Corinth, TX 76205

 


 

GRANTOR

 

LOCATIONS

 

 

 

Operations Company for Homestead, Inc.

 

Sam Sneads Tavern
Hwy 220 PO Box 2000
Hot Springs, VA 24445

The Homestead - Rubinos
3789 Sam Snead Highway
Hot Springs, VA 24445

The Homestead
US Route 22, Box 2000
Hot Springs, VA 24445

The Homestead - The Lower Cascades
732 Lower Cascades Drive
Hot Springs, VA 24445

 

 

 

Owners Club Asset Company

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Piedmont Club, Inc.

 

Piedmont Club
200 W. Second Street, 19th Floor
Winston-Salem, NC 27101

 

 

 

Piedmont Golfers’ Club LLC

 

Piedmont Golfers’ Club
14675 Piedmont Vista Drive
Haymarket, VA 20169

 

 

 

Pyramid Club Management, Inc.

 

Pyramid Club
1735 Market Street, 52nd Floor
Philadelphia, PA 19103

 

 

 

Quail Hollow Management, Inc.

 

Quail Hollow Country Club
11295 Quail Hollow Drive
Concord, OH 44077

 

 

 

Queens Harbour Corporation

 

Queens Harbour Yacht and Country Club
1131 Queens Harbour Boulevard
Jacksonville, FL 32201

 

 

 

Renaissance Club, Inc.

 

Renaissance Club
200 Renaissance Center, Suite 3600
Detroit, MI 48243

Skyline Club
2800 Town Center, 28th Floor
Southfield, MI 48075

 

 

 

Richardson Country Club Corp.

 

Canyon Creek Country Club
625 Lookout Drive
Richardson, TX 75080

 

 

 

River Creek Country Club, Inc.

 

The River Creek Club
43800 Olympic Blvd.
Leesburg, VA 20176

 

 

 

Rivers Club, Inc.

 

Rivers Club
One Oxford Center
301 Grant Street
Pittsburgh, PA 15219

 

 

 

Shady Valley Management Corp.

 

Shady Valley Golf Club
4001 West Park Row
Arlington, TX 76013

 


 

GRANTOR

 

LOCATIONS

 

 

 

Shoreby Club Management, Inc.

 

Shoreby Club
40 Shoreby Drive
Bratenahl, OH 44108

 

 

 

Silver Lake Management Corp.

 

Silver Lake Country Club
1325 Graham Road
Cuyahoga Falls, OH 44224

 

 

 

Skyline Club, Inc.

 

Skyline Club
One American Square, 36th Floor
Indianapolis, IN 46204

 

 

 

Society Management, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Southern Trace Country Club of Shreveport, Inc.

 

Southern Trace Country Club
200 South Trace Parkway
Shreveport, LA 71106

 

 

 

Stonebriar Management Corp.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

Stonehenge Club, Inc.

 

Stonehenge Golf and Country Club
1000 Farnham Drive
Richmond, VA 23236

 

 

 

Tampa Palms Club, Inc.

 

Tampa Palms Golf & Country Club
5811 Tampa Palms Boulevard
Tampa, FL 33647

 

 

 

The 191 Club, Inc.

 

The 191 Club
191 Peachtree St NE, 49th Floor
Atlanta, GA 30303

 

 

 

The Buckhead Club, Inc.

 

Buckhead Club
3344 Peachtree Road NE, 26th Floor
Atlanta, GA 30326

 

 

 

The Club at Cimarron, Inc.

 

The Club at Cimarron
1200 S. Shary Road
Mission, TX 78572

 

 

 

The Club at Society Center, Inc.

 

Club at Key Center
Marriott Building
127 Public Square, 4th Floor
Cleveland, OH 44114

 

 

 

The Commerce Club, Inc.

 

Commerce Club
1 Liberty Square, Floor 17
Greenville, SC 29601

 

 

 

The Downtown Club, Inc.

 

The Houston Center Club at Downtown
1100 Caroline, 11th Floor
Houston, TX 77002

The Met Business and Sports Club at Downtown
One Allen Center, 6th Floor
340 West Dallas
Houston, TX 77002

The Plaza Club at Downtown
910 Louisiana, 49th Floor
Houston, TX 77002

 

 

 

The Manager of the Owner’s Club, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 


 

GRANTOR

 

LOCATIONS

 

 

 

The Metropolitan Club of Chicago, Inc.

 

The Metropolitan Club
233 S. Wacker Drive, 67th Floor
Chicago, IL 60606

 

 

 

The Owner’s Club, Inc.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

The Owner’s Club at Hilton Head, L.P.

 

22 Aberdeen Court
Hilton Head Island, SC 29926

 

 

 

The Owner’s Club of South Carolina, L.L.C.

 

3030 LBJ Freeway, Suite 600
Dallas, TX 75234

 

 

 

The Plaza Club of San Antonio, Inc.

 

Plaza Club of San Antonio
100 W. Houston Street, Suite 2100
San Antonio, TX 78205

 

 

 

The Summit Club, Inc.

 

The Summit Club
1901 6th Avenue, Suite 3100
Birmingham, AL 35203

 

 

 

The University Club, Inc.

 

University Club
210 E. Capital St., Ste 2200
Jackson, Mississippi 39201

 

 

 

Timarron Golf Club, Inc.

 

Timarron Country Club
1400 Byron Nelson Parkway
SouthLake, TX 76092

 

 

 

Tower City Club of Virginia, Inc.

 

The Tower Club
Tyson’s Corner
8000 Towers Crescent Dr., Ste 1700
Vienna, VA 22182

 

 

 

Tower Club of Dallas, Inc.

 

Dallas Tower Club
1601 Elm Street, 48th Floor
Dallas, TX 75201

 

 

 

Tower Club, Inc.

 

Tower Club
One Financial Plaza, 28th Floor
Fort Lauderdale, FL 33394

 

 

 

Town Point Club, Inc.

 

Town Point Club
World Trade Center, Suite 300
101 W. Main St.
Norfolk, VA 23510

 

 

 

Treesdale Country Club, Inc.

 

Treesdale Country Club
One Arnold Palmer Drive
Gibsonia, PA 15044

 

 

 

UMass Club Management, LLC

 

University of Masachusetts Club
225 Franklin Street
Boston, Massachusetts 02100

 

 

 

UNC Alumni Club Management, Inc.

 

Carolina Club
George Watts Hill Alumni Center
Stadium Drive at Ridge Road
P.O. Box 111
Chapel Hill, NC 27514

 

 

 

University Club Management Co., Inc.

 

University Center Club
Doak Campbell Stadium
Florida State University
Tallahassee, Fl 32306

 

 

 

University Club, Inc.

 

University Club
1301 Riverplace Boulevard, #2516
Jacksonville, FL 32207

 


 

GRANTOR

 

LOCATIONS

 

 

 

Walnut Creek Management Corporation

 

Walnut Creek Country Club
1151 Country Club Drive
Mansfield, TX 76063

 

 

 

West Park Club, Inc.

 

The WestLake Club
570 Westlake Park Boulevard
6th, 7th & 8th Levels
Houston, TX 77079

 

 

 

Westlake City Club, Inc.

 

The WestLake Club
570 Westlake Park Boulevard
6th, 7th & 8th Levels
Houston, TX 77079

 

 

 

Wildflower Country Club, Inc.

 

Wildflower Country Club
4902 Wildflower Lane
Temple, TX 76502

 

 

 

Willow Creek Management, Inc.

 

Willow Creek Golf Club
24525 Northcrest
Spring, TX 77389

 

 

 

Woodside Plantation Country Club, Inc.

 

Woodside Plantation Country Club
1000 Woodside Plantation
Aiken, SC 29803

 

 

SCHEDULE 5

 

PLEDGED COLLATERAL

 

Part 1. Pledged Certificated Stock to be delivered to the Administrative Agent

 

Grantor

 

Issuers

 

Grantor’s
Ownership
Interest in
Issuer

 

% of
Outstanding
Ownership
Interest in
Issuer being
Pledged by
Grantor

 

CCA Club Operations Holdings, LLC

 

ClubCorp Club Operations, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp Club Operations, Inc.

 

ClubCorp USA, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

CCA Golf Course Holdco, LLC

 

FFFC Golf Acquisitions, L.L.C.

 

100

%

100

%

 

 

Akron Management Corp.

 

100

%

100

%

 

 

Anthem Golf, LLC

 

100

%

100

%

 

 

April Sound Management Corp.

 

100

%

100

%

 

 

Bay Oaks Country Club, Inc.

 

100

%

100

%

 

 

Brookhaven Country Club, Inc.

 

100

%

100

%

 

 

Canyon Gate at Las Vegas, Inc.

 

100

%

100

%

 

 

ClubCorp Braemar Country Club, Inc.

 

100

%

100

%

 

 

ClubCorp Canyon Crest Country Club, Inc.

 

100

%

100

%

 

 

ClubCorp Coto Property Holdings, Inc.

 

100

%

100

%

 

 

ClubCorp Crow Canyon Management Corp.

 

100

%

100

%

 

 

ClubCorp Desert Falls Country Club, Inc.

 

100

%

100

%

 

 

ClubCorp Gen Par of Texas, L.L.C.

 

100

%

100

%

 

 

ClubCorp Porter Valley Country Club, Inc.

 

100

%

100

%

 

 

ClubCorp Shadow Ridge Golf Club, Inc.

 

100

%

100

%

 

 

ClubCorp Spring Valley Lake Country Club, Inc.

 

100

%

100

%

 

 

Countryside Country Club, Inc.

 

100

%

100

%

 

 

DeBary Management Corp.

 

100

%

100

%

 

 

Diamond Run Club, Inc.

 

100

%

100

%

 

 

Fair Oaks Club Corp.

 

100

%

100

%

 

 

Fort Bend Acquisition Corp.

 

100

%

100

%

 

 

GCC Asset Management, Inc.

 

100

%

100

%

 

 

GRanch Golf Club, Inc.

 

100

%

100

%

 

 

Greenbrier Country Club, Inc.

 

100

%

100

%

 

 

Hackberry Creek Country Club, Inc.

 

100

%

100

%

 

 

Haile Plantation Management Corp.

 

100

%

100

%

 

 

Hearthstone Country Club, Inc.

 

100

%

100

%

 

 

Hill Country Golf, Inc.

 

100

%

100

%

 

 

Hunter’s Green Acquisition Corp.

 

100

%

100

%

 

 

Indigo Run Asset Corp.

 

100

%

100

%

 

 

Irving Club Acquisition Corp.

 

100

%

100

%

 

 

Kingwood Country Club, Inc.

 

100

%

100

%

 


 

Grantor

 

Issuers

 

Grantor’s
Ownership
Interest in
Issuer

 

% of
Outstanding
Ownership
Interest in
Issuer being
Pledged by
Grantor

 

 

 

Knollwood Country Club, Inc.

 

100

%

100

%

 

 

Lakeway Clubs, Inc.

 

100

%

100

%

 

 

Manager for CCHH, Inc.

 

100

%

100

%

 

 

Northwood Management Corp.

 

100

%

100

%

 

 

Oak Pointe Country Club, Inc.

 

100

%

100

%

 

 

Oakmont Management Corp.

 

100

%

100

%

 

 

Quail Hollow Management, Inc.

 

100

%

100

%

 

 

Queens Harbour Corporation

 

100

%

100

%

 

 

Richardson Country Club Corp.

 

100

%

100

%

 

 

Shady Valley Management Corp.

 

100

%

100

%

 

 

Southern Trace Country Club of Shreveport, Inc.

 

100

%

100

%

 

 

Tampa Palms Club, Inc.

 

100

%

100

%

 

 

The Club at Cimarron, Inc.

 

100

%

100

%

 

 

Timarron Golf Club, Inc.

 

100

%

100

%

 

 

Treesdale Country Club, Inc.

 

100

%

100

%

 

 

Walnut Creek Management Corporation

 

100

%

100

%

 

 

Wildflower Country Club, Inc.

 

100

%

100

%

 

 

Woodside Plantation Country Club, Inc.

 

100

%

100

%

 

 

ClubCorp Golf of Georgia, L.P.

 

99

%

99

%

 

 

ClubCorp Golf of Texas, L.P.

 

99

%

99

%

 

 

 

 

 

 

 

 

CCA Mezzanine Holdco, LLC

 

ClubCorp Mexico, Inc.

 

100

%

100

%

 

 

191 CC Operating Co., LLC

 

100

%

100

%

 

 

Athletic Club at the Equitable Center, Inc.

 

100

%

100

%

 

 

Capital City Club of Montgomery, Inc.

 

100

%

100

%

 

 

Capital City Club of Raleigh, Inc.

 

100

%

100

%

 

 

Centre Club, Inc.

 

100

%

100

%

 

 

Citrus Club, Inc.

 

100

%

100

%

 

 

City Club of Washington, Inc.

 

100

%

100

%

 

 

Club at Boston College, Inc.

 

100

%

100

%

 

 

Club Le Conte, Inc.

 

100

%

100

%

 

 

ClubCorp Bunker Hill Club, Inc.

 

100

%

100

%

 

 

ClubCorp Center Club, Inc.

 

100

%

100

%

 

 

ClubCorp San Jose Club, Inc.

 

100

%

100

%

 

 

ClubCorp Symphony Towers Club, Inc.

 

100

%

100

%

 

 

Columbia Capital City Club Corp.

 

100

%

100

%

 

 

Columbia Tower Club, Inc.

 

100

%

100

%

 

 

Dayton Racquet Club, Inc.

 

100

%

100

%

 

 

First City Club Management, Inc.

 

100

%

100

%

 

 

Glendale Management Corp.

 

100

%

100

%

 

 

Greenspoint Club, Inc.

 

100

%

100

%

 

 

Harbour Club of Charleston, Inc.

 

100

%

100

%

 

 

Houston City Club, Inc.

 

100

%

100

%

 


 

Grantor

 

Issuers

 

Grantor’s
Ownership
Interest in
Issuer

 

% of
Outstanding
Ownership
Interest in
Issuer being
Pledged by
Grantor

 

 

 

La Cima Club, Inc.

 

100

%

100

%

 

 

MAC Club, LLC

 

100

%

100

%

 

 

Memorial Stadium Club Management Corp.

 

100

%

100

%

 

 

Memphis City Club, Inc.

 

100

%

100

%

 

 

Nashville Club Management, Inc.

 

100

%

100

%

 

 

Piedmont Club, Inc.

 

100

%

100

%

 

 

Pyramid Club Management, Inc.

 

100

%

100

%

 

 

Renaissance Club, Inc.

 

100

%

100

%

 

 

Rivers Club, Inc.

 

100

%

100

%

 

 

Shoreby Club Management, Inc.

 

100

%

100

%

 

 

Skyline Club, Inc.

 

100

%

100

%

 

 

The 191 Club, Inc.

 

100

%

100

%

 

 

The Buckhead Club, Inc.

 

100

%

100

%

 

 

The Club at Society Center, Inc.

 

100

%

100

%

 

 

The Commerce Club, Inc.

 

100

%

100

%

 

 

The Downtown Club, Inc.

 

100

%

100

%

 

 

The Metropolitan Club of Chicago, Inc.

 

100

%

100

%

 

 

The Plaza Club of San Antonio, Inc.

 

100

%

100

%

 

 

The Summit Club, Inc.

 

100

%

100

%

 

 

The University Club, Inc.

 

100

%

100

%

 

 

Tower City Club of Virginia, Inc.

 

100

%

100

%

 

 

Tower Club of Dallas, Inc.

 

100

%

100

%

 

 

Tower Club, Inc.

 

100

%

100

%

 

 

Town Point Club, Inc.

 

100

%

100

%

 

 

UMass Club Management, LLC

 

100

%

100

%

 

 

UNC Alumni Club Management, Inc.

 

100

%

100

%

 

 

University Club Management Co., Inc.

 

100

%

100

%

 

 

University Club, Inc.

 

100

%

100

%

 

 

Westlake City Club, Inc.

 

100

%

100

%

 

 

Aspen Glen Golf Club Management Company

 

100

%

100

%

 

 

Bluegrass Club, LLC

 

100

%

100

%

 

 

ClubCorp Airways Golf, Inc.

 

100

%

100

%

 

 

ClubCorp Aliso Viejo Holding Corp.

 

100

%

100

%

 

 

ClubCorp GCL Corporation

 

100

%

100

%

 

 

ClubCorp Granite Bay Management, Inc.

 

100

%

100

%

 

 

ClubCorp IW Golf Club, Inc.

 

100

%

100

%

 

 

ClubCorp Mission Hills Country Club, Inc.

 

100

%

100

%

 

 

ClubCorp Teal Bend Golf Club, Inc.

 

100

%

100

%

 

 

ClubCorp Turkey Creek Golf Club, Inc.

 

100

%

100

%

 

 

Currituck Golf, LLC

 

100

%

100

%

 

 

Diamante’ Golf Club Management, Inc

.

100

%

100

%

 

 

Diamante’ Golf Club Partners, Inc

.

100

%

100

%

 


 

Grantor

 

Issuers

 

Grantor’s
Ownership
Interest in
Issuer

 

% of
Outstanding
Ownership
Interest in
Issuer being
Pledged by
Grantor

 

 

 

Empire Ranch, LLC

 

100

%

100

%

 

 

GP Bear’s Best Atlanta, Inc.

 

100

%

100

%

 

 

GP Bear’s Best Las Vegas, Inc.

 

100

%

100

%

 

 

Laurel Springs Holdco, LLC

 

100

%

100

%

 

 

LionsGate Golf Club, Inc.

 

100

%

100

%

 

 

Management Company for Eagle Ridge and The Preserve

 

100

%

100

%

 

 

New England Country Club Management, Inc.

 

100

%

100

%

 

 

River Creek Country Club, Inc.

 

100

%

100

%

 

 

Silver Lake Management Corp.

 

100

%

100

%

 

 

Stonebriar Management Corp.

 

100

%

100

%

 

 

Stonehenge Club, Inc.

 

100

%

100

%

 

 

Willow Creek Management, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp Aliso Viejo Holding Corp.

 

Aliso Viejo Golf Club Joint Venture

 

50

%

50

%

 

 

 

 

 

 

 

 

ClubCorp - Asia

 

ClubCorp Asia Investments Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp Buying Services, Inc.

 

ClubCorp Aven Holdings, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp Club Operations, Inc.

 

ClubCorp USA, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp GCL Corporation, Inc.

 

Aliso Viejo Golf Club Joint Venture

 

50

%

50

%

 

 

 

 

 

 

 

 

ClubCorp Gen Par of Texas, L.L.C.

 

ClubCorp Golf of Georgia, L.P.

 

1

%

1

%

 

 

ClubCorp Golf of Texas, L.P.

 

1

%

1

%

 

 

 

 

 

 

 

 

ClubCorp International, Inc.

 

ClubCorp —Asia

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp Mezzanine Borrower, LLC

 

ClubCorp Mortgage Borrower, LLC

 

100

%

100

%

 

 

CCA Mezzanine Holdco, LLC

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp Mortgage Borrower, LLC

 

Barton Creek Resort & Clubs, Inc.

 

100

%

100

%

 

 

CCA Golf Course Holdco, LLC

 

100

%

100

%

 

 

Operations Company for Homestead, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

ClubCorp Mexico, Inc.

 

CCG Club de Golf S.A. de C.V.

 

99.28

%

65

%(1)

 

 

Promociones Turisticas Professionales, S.A. de C.V.

 

99

%

65

%(2)

 

 

CG Inversiones S.A. de C.V.

 

98.8

%

65

%(3)

 

 

 

 

 

 

 

 

ClubCorp USA, Inc.

 

ClubCorp Buying Services, Inc.

 

100

%

100

%

 

 

ClubCorp Financial Management Company

 

100

%

100

%

 

 

ClubCorp Graphics, Inc.

 

100

%

100

%

 

 

ClubCorp Mezzanine Borrower, LLC

 

100

%

100

%

 

 

ClubCorp Publications, Inc.

 

100

%

100

%

 

 

Master Club, Inc.

 

100

%

100

%

 

 

MH Villas, Inc.

 

100

%

100

%

 

 

Monarch EP Management Corp.

 

100

%

100

%

 

 

Owners Club Asset Company

 

100

%

100

%

 

 

Society Management, Inc.

 

100

%

100

%

 

(1)  These are the same shares pledged pursuant to the Mexico Pledge Agreement.

(2)  These are the same shares pledged pursuant to the Mexico Pledge Agreement.

(3)  These are the same shares pledged pursuant to the Mexico Pledge Agreement.

 


 

Grantor

 

Issuers

 

Grantor’s
Ownership
Interest in
Issuer

 

% of
Outstanding
Ownership
Interest in
Issuer being
Pledged by
Grantor

 

 

 

The Manager of the Owner’s Club, Inc.

 

100

%

100

%

 

 

The Owner’s Club, Inc.

 

100

%

100

%

 

 

Hills II of Lakeway, Inc.

 

100

%

100

%

 

 

ClubCorp International, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

FFFC Golf Acquisitions, L.L.C.

 

ClubCorp Golf of California, L.L.C.

 

100

%

100

%

 

 

ClubCorp Golf of Florida, L.L.C.

 

100

%

100

%

 

 

ClubCorp Golf of North Carolina, L.L.C.

 

100

%

100

%

 

 

Piedmont Golfers’ Club LLC

 

100

%

100

%

 

 

 

 

 

 

 

 

Glendale Management Corp.

 

Glendale Racquet Club, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

Tower Club of Dallas, Inc.

 

Dallas Tower Club, Inc.

 

100

%

100

%

 

 

 

 

 

 

 

 

Westlake City Club, Inc.

 

West Park Club, Inc.

 

100

%

100

%

 


 

Part 2. Pledged Uncertificated Stock and Pledged Certificated Stock — delivery of which is not required

 

Grantor

 

Issuer

 

Grantor’s
Ownership
Interest in
Issuer

 

% of
Outstanding
Ownership
Interest in
Issuer being
Pledged by
Grantor

 

ClubCorp USA, Inc.

 

191 Athletic Club Management Company, LLC

 

100

%

100

%

 

 

AZ Club, LLC

 

100

%

100

%

 

 

ClubCorp Hamlet, LLC

 

100

%

100

%

 

 

ClubCorp Management Company for Stone Creek, LLC

 

100

%

100

%

 

 

ClubCorp TTC, LLC

 

100

%

100

%

 

 

ClubCorp Willow Creek, LLC

 

100

%

100

%

 

 

ClubCorp Wind Watch, LLC

 

100

%

100

%

 

 

Farms of New Kent Management, LLC

 

100

%

100

%

 

 

 

 

 

 

 

 

Haile Plantation Management Corp

 

HPG, L.C.

 

100

%

100

%

 

 

 

 

 

 

 

 

Owners Club Asset Company

 

The Owner’s Club of South Carolina, L.L.C.

 

49.50

%

49.50

%

 

 

 

 

 

 

 

 

The Manager of the Owner’s Club, Inc.

 

The Owner’s Club at Hilton Head, L.P.

 

1

%

1

%

 

 

 

 

 

 

 

 

The Owner’s Club, Inc

 

The Owner’s Club of South Carolina, L.L.C.

 

50.50

%

50.50

%

 

 

 

 

 

 

 

 

The Owner’s Club of South Carolina, L.L.C

 

The Owner’s Club at Hilton Head, L.P.

 

99

%

99

%

 

Part 3. Pledged Debt

 

NONE

 

 

SCHEDULE 6

 

A.       REGISTERED TRADEMARKS (USA)

(*Material Intellectual Property)

 

Owner

 

Mark

 

Registration
No.

 

Status

 

Date
Registered

ClubCorp, Inc.

 

[Registered Trademark Logo]

(World mark)

 

1809569

 

Registered

 

12/7/1993

ClubCorp, Inc.

 

ASSOCIATE CLUB

 

2031369*

 

Registered

 

1/21/1997

ClubCorp, Inc.

 

ASSOCIATE CLUBS

 

3809576*

 

Registered

 

6/29/2010

ClubCorp USA, Inc.

 

BUILDING RELATIONSHIPS & ENRICHING LIVES

 

3257550*

 

Registered

 

7/3/2007

ClubCorp, Inc.

 

CALL THE CLUBLINE

 

1842141

 

Registered

 

6/28/1994

ClubCorp, Inc.

 

[Registered Trademark Logo]

 

2739660*

 

Registered

 

7/22/2003

ClubCorp, Inc.

 

[Registered Trademark Logo]

 

3805881*

 

Registered

 

6/22/2010

ClubCorp, Inc.

 

[Registered Trademark Logo]

 

3869580*

 

Registered

 

11/2/2010

ClubCorp Financial Management Company

 

[Registered Trademark Logo]

 

1798502

 

Registered

 

10/12/1993

ClubCorp Financial Management Company

 

[Registered Trademark Logo]

 

1794120

 

Registered

 

9/21/2003

ClubCorp Financial Management Company

 

[Registered Trademark Logo]

 

1796801

 

Registered

 

10/5/1993

ClubCorp Financial Management Company

 

CLUBCATER

 

1794119

 

Registered

 

9/21/1993

ClubCorp, Inc.

 

CLUBCORP

 

3805888*

 

Registered

 

6/22/2010

ClubCorp, Inc.

 

CLUBCORP

 

3853295*

 

Registered

 

9/28/2010

ClubCorp, Inc.

 

CLUBCORP

 

2715195*

 

Registered

 

5/13/2003

ClubCorp, Inc.

 

CLUBCORP

 

1829559*

 

Registered

 

4/5/1994

 


 

Owner

 

Mark

 

Registration
No.

 

Status

 

Date
Registered

ClubCorp, Inc.

 

CLUBCORP

 

1857126*

 

Registered

 

10/4/1994

ClubCorp, Inc.

 

CLUBCORP RESORTS

 

2964428

 

Registered

 

7/5/2005

ClubCorp, Inc.

 

[Registered Trademark Logo]

 

2964429

 

Registered

 

7/5/2005

ClubCorp, Inc.

 

[Registered Trademark Logo]

 

2774312

 

Registered

 

10/21/2003

ClubCorp, Inc.

 

[Registered Trademark Logo]

 

1718631

 

Registered

 

9/22/1992

ClubCorp USA, Inc.

 

CLUBCORP CHARITY CLASSIC

 

3869730

 

Registered

 

11/2/2010

ClubCorp, Inc.

 

CLUBLINE

 

3115841

 

Registered

 

7/18/2006

ClubCorp, Inc.

 

CLUB RESORTS

 

3809640

 

Registered

 

6/29/2010

ClubCorp, Inc.

 

FASTEE COURSE

 

3693584

 

Registered

 

10/6/2009

ClubCorp USA, Inc.

 

[Registered Trademark Logo]

 

3258688

 

Registered

 

7/3/2007

ClubCorp USA, Inc.

 

[Registered Trademark Logo]

 

1557287

 

Registered

 

9/19/1989

ClubCorp USA, Inc.

 

[Registered Trademark Logo]

 

1567584

 

Registered.

 

11/21/1989

ClubCorp, Inc.

 

MEMBERCARD

 

1910358

 

Registered

 

8/8/1995

ClubCorp, Inc.

 

MEMBERCARD

 

1908763

 

Registered

 

8/1/1995

ClubCorp Publications, Inc.

 

PRIVATE CLUBS

 

3809587*

 

Registered

 

6/29/2010

ClubCorp, Inc.

 

PLAZA CLUB HAWAII

 

3805883

 

Registered

 

6/22/2010

ClubCorp, Inc.

 

[Registered Trademark Logo]

 

3805889

 

Registered

 

6/22/2010

ClubCorp, Inc. (formerly owned by Pinehurst Company)

 

THE OWNERS CLUB

 

3757515

 

Registered

 

3/9/2010

Society Management, Inc.

 

THE SOCIETY

 

2713763

 

Registered

 

5/6/2003

ClubCorp, Inc.

 

The World Leader in Private Clubs

 

3809642*

 

Registered

 

6/29/2010

 


 

Owner

 

Mark

 

Registration
No.

 

Status

 

Date
Registered

ClubCorp, Inc.

 

Warm Welcomes, Magic Moments, and Fond Farewells

 

3805951*

 

Registered

 

6/22/2010

 

REGISTERED TRADEMARKS (FOREIGN)

 

None

 

COPYRIGHT REGISTRATIONS (USA OR FOREIGN)

 

None

 

PATENT REGISTRATIONS (USA OR FOREIGN)

 

None

 


 

SCHEDULE 6

 

B.            TRADEMARK APPLICATIONS

 

Owner

 

Mark

 

Serial
(Application) No.

 

Registration No.

 

Date of
Application

ClubCorp, Inc.

 

CLUB WITHOUT WALLS

 

77-478858

 

Pending

 

5/20/2008

 

TRADEMARK APPLICATIONS (FOREIGN)

 

None

 

COPYRIGHT APPLICATIONS (USA AND FOREIGN)

 

None

 

PATENT APPLICATIONS (USA AND FOREIGN)

 

None

 

 

SCHEDULE 6

 

C. IP LICENSES

 

License Agreements

(Intellectual Property)

 

1.                                       Bear’s Best Atlanta License Agreement:

 

Bear’s Best Golf Club License Agreement, dated February 23, 2000, by and between Golden Bear International, Inc., a Florida corporation (“Licensor”) and Bear’s Best Atlanta, L.P., a Georgia limited partnership (“Licensee”), granting the use of certain trademark rights in the name and phrase “Bear’s Best” and Bear’s Best logo for the purpose of identifying a golf facility located Gwinnett County, Georgia.

 

2.                                       Bear’s Best Las Vegas License Agreement:

 

Bear’s Best Golf Club License Agreement, dated April 3, 2000, by and between Golden Bear International, Inc., a Florida corporation (“Licensor”) and Bear’s Best Las Vegas, L.P., a Nevada limited partnership (“Licensee”), granting the use of certain trademark rights in the name and phrase “Bear’s Best” and Bear’s Best logo for the purpose of identifying a golf facility located in Clark County, Nevada.

 

3.                                       Laurel Springs 1998-Golden Bear License Agreement:

 

Golden Bear Golf Club License Agreement, dated October 15, 1998, by and between Golden Bear International, Inc., a Florida corporation (“Licensor”), and Laurel Springs Limited Partnership, a Delaware limited partnership (“Licensee”), granting the use of certain trademark rights in the name and phrase Golden Bear Golf Club™ and Golden Bear logo to identify, operate and promote a semi-private daily fee golf course facility located in Suwanee, Forsyth County, Georgia.

 

4.                                       Laurel Springs 1999-Golden Bear License Agreement:

 

Golden Bear Golf Club License Agreement, dated September 30, 1999, by and between Golden Bear International, Inc., a Florida corporation (“Licensor”) and ClubCorp LSprings, L.P., a Georgia limited partnership (“Licensee”), granting a license to utilize the Licensor’s trademark rights in the name and phrase “Golden Bear Golf Club™” and its Golden Bear logo in connection with the operation of a high quality, regulation length 18 hole golf course and practice facilities located in Suwanee, Forsyth County, Georgia.

 

5.                                       Laurel Springs License Agreement:

 

Laurel Springs License Agreement, dated September, 1999, by and between Laurel Springs Limited Partnership (“Licensor”), a Delaware limited partnership and ClubCorp LSprings, L.P., a Georgia limited partnership (“Licensee”), granting a non-exclusive, royalty free right and

 


 

license to use the Trademark, words and logo “Laurel Springs”, in connection with Licensee’s development, operation and advertising of the golf club located in Suwanee, Forsyth County, Georgia.

 

6.                                       Firestone License Agreement:

 

License Agreement, dated March 9, 1981, by and between The Firestone Tire and Rubber Company, an Ohio corporation (“Licensor”) and Akron Management Corp., an Ohio corporation (“Licensee”), granting a license to use the words “Firestone Country Club” in the stylized and logo formats (all collectively referred to as the “Licensed Marks and Names”) for the operation and marketing of the club located in Akron, Ohio. Licensee having acquired Firestone Country Club pursuant to a Contract of Sale dated February 23, 1981, between Licensor and Licensee, Licensor granted the use of Licensed Marks and Names limited to use by Firestone Country Club.

 

7.                                       LionsGate (Nicklaus Golf Club at) License Agreement:

 

Nicklaus Golf Club and Golden Bear Golf Club License Agreement, dated December 15, 1998, by and between Golden Bear International, Inc., a Florida corporation (“Licensor”) and Nicklaus Golf Club, L.P., at Lionsgate, a Kansas limited partnership (“Licensee”), granting a license to utilize the Licensor’s trademark rights in the name and phrase “Golden Bear Golf Club™” and its Golden Bear logo in connection with the operation of a high quality, regulation length 18 hole golf course and practice facilities located in Overland Park, Kansas.

 


 

SCHEDULE 6

 

D.            DOMAIN NAMES

 

Owner

 

Domain Name

 

Creation
Date

 

Expiration
Date

 

 

 

 

 

 

 

ClubCorp USA

 

191-CLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

AIRWAYS-GOLF.COM

 

05/17/00

 

05/17/11

 

 

 

 

 

 

 

ClubCorp USA

 

ALISOGOLF.COM

 

09/13/00

 

09/17/12

 

 

 

 

 

 

 

ClubCorp USA

 

ANTHEMCLUBAZ.COM

 

04/19/07

 

04/19/12

 

 

 

 

 

 

 

ClubCorp USA

 

ANTHEMGOLFCLUB.COM

 

10/12/06

 

10/12/11

 

 

 

 

 

 

 

ClubCorp USA

 

ANTHEMGOLFCLUBAZ.COM

 

11/02/06

 

11/02/11

 

 

 

 

 

 

 

ClubCorp USA

 

APRIL-SOUND.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

APRILSOUNDCOUNTRYCLUB.COM

 

04/20/05

 

04/20/11

 

 

 

 

 

 

 

ClubCorp USA

 

APRIVATEEVENT.COM

 

10/10/01

 

10/10/11

 

 

 

 

 

 

 

ClubCorp USA

 

ARIZONA-SOCIETY.COM

 

07/27/07

 

07/27/12

 

 

 

 

 

 

 

ClubCorp USA

 

ASPEN-GLEN.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

ATHLETICSWIM.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

ATLANTASOCIETY.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

AUSTINSOCIETY.COM

 

01/09/99

 

01/09/11

 

 

 

 

 

 

 

ClubCorp USA

 

BANKERS-CINN.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

BAYOAKSCOUNTRYCLUB.COM

 

08/16/99

 

08/16/12

 

 

 

 

 

 

 

ClubCorp USA

 

BEARSBESTATLANTA.COM

 

06/01/01

 

06/01/12

 

 

 

 

 

 

 

ClubCorp USA

 

BEARSBESTLASVEGAS.COM

 

06/01/01

 

06/01/12

 

 

 

 

 

 

 

ClubCorp USA

 

BLUEGRASSCOUNTRYCLUB.COM

 

07/31/01

 

07/31/12

 

 

 

 

 

 

 

ClubCorp USA

 

BOSTONCOLLEGECLUB.COM

 

08/16/99

 

08/16/12

 

 

 

 

 

 

 

ClubCorp USA

 

BRAEMARCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

BROOKHAVENCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

BUCKHEAD-CLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

CANYONCREEKCC.COM

 

07/07/04

 

10/04/12

 

 

 

 

 

 

 

ClubCorp USA

 

CANYONCREEKCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

CANYONCREEKCOUNTRYCLUB.COM

 

07/07/04

 

10/04/12

 

 

 

 

 

 

 

ClubCorp USA

 

CANYONCRESTCC.COM

 

06/16/00

 

06/16/12

 

 

 

 

 

 

 

ClubCorp USA

 

CANYON-GATE.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

CANYONGATECOUNTRYCLUB.COM

 

07/07/04

 

10/06/12

 

 

 

 

 

 

 

ClubCorp USA

 

CAPITALCOLUMBIA.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

CAPITALMONTGOMERY.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

CAPITALRALEIGH.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

CAPITALSOCIETY.COM

 

05/25/00

 

05/25/12

 

 

 

 

 

 

 

ClubCorp USA

 

CARDINAL-CLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

CARILLONBEACHCLUB.COM

 

10/12/06

 

10/12/11

 

 

 

 

 

 

 

ClubCorp USA

 

CAROLINA-CLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

CENTER-CLUB.COM

 

06/06/00

 

06/06/12

 

 

 

 

 

 

 

ClubCorp USA

 

CENTRETAMPA.COM

 

05/31/00

 

05/31/12

 

 

 

 

 

 

 

ClubCorp USA

 

CHARLOTTESOCIETY.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

CHICAGO-SOCIETY.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

CITRUS-CLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

CITY-WASHINGTON.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBATCIMARRON.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBBENEFITSONLINE.COM

 

04/23/09

 

04/23/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORP.IN

 

03/12/08

 

03/12/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORP.TW

 

03/12/08

 

03/12/13

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPATLANTA.COM

 

09/23/02

 

09/23/12

 


 

Owner

 

Domain Name

 

Creation
Date

 

Expiration
Date

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPBUSINESSCLUBS.COM

 

10/19/00

 

10/19/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPDAILYFEE.COM

 

05/02/05

 

05/02/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPEVENTS.COM

 

05/02/05

 

05/02/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPGOLF.COM

 

08/07/00

 

08/07/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPGOLFSACRAMENTO.COM

 

03/20/09

 

03/20/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPINTL.COM

 

03/12/96

 

03/13/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPLIFE.COM

 

08/11/09

 

08/11/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPLIFE.NET

 

08/12/09

 

08/12/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPMEETINGS.COM

 

05/02/05

 

05/02/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPMEMBERAPPRECIATION.COM

 

12/18/08

 

12/18/10

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPMEMBERSHIP.COM

 

05/02/05

 

05/02/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPNETWORK.COM

 

08/11/09

 

08/11/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPNETWORK.NET

 

08/12/09

 

08/12/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPONLINE.COM

 

01/09/01

 

01/09/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPPRIVATEEVENTS.COM

 

05/02/05

 

05/02/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPRESERVE.COM

 

11/15/05

 

11/15/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPRESORTS.COM

 

04/12/99

 

04/12/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPSOCIETIES.COM

 

01/31/06

 

01/31/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPWEDDINGS.COM

 

05/02/05

 

05/02/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBCORPYEX.COM

 

04/22/09

 

04/22/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBLECONTE.COM

 

06/12/00

 

06/12/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBLINE.COM

 

03/22/96

 

03/23/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBRESORTS.COM

 

03/12/96

 

03/13/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBSATSTONEBRIDGERANCH.COM

 

06/09/00

 

06/09/12

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBSOFLAKEWAY.COM

 

04/27/00

 

04/27/11

 

 

 

 

 

 

 

ClubCorp USA

 

CLUBWITHOUTWALLS.NET

 

01/21/08

 

01/21/11

 

 

 

 

 

 

 

ClubCorp USA

 

CMECLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

COLUMBIA-TOWER.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

COMMERCE-CLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

COMPASS-SOCIETY.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

COMPASS-SOCIETYNORTHERN.COM

 

02/06/08

 

02/06/13

 

 

 

 

 

 

 

ClubCorp USA

 

COMPASSSOCIETYSC.COM

 

09/11/02

 

09/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

COMPASS-SOCIETYSOUTHERN.COM

 

02/06/08

 

02/06/13

 

 

 

 

 

 

 

ClubCorp USA

 

CONNECTIONSERIES.COM

 

04/12/02

 

04/12/12

 

 

 

 

 

 

 

ClubCorp USA

 

COTO-DE-CAZA.COM

 

06/21/02

 

06/21/12

 

 

 

 

 

 

 

ClubCorp USA

 

COUNTRYCLUBOFGWINNETT.COM

 

03/15/05

 

03/15/12

 

 

 

 

 

 

 

ClubCorp USA

 

COUNTRYSIDECLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

COUNTRYSIDECOUNTRYCLUB.COM

 

01/09/99

 

01/09/11

 

 

 

 

 

 

 

ClubCorp USA

 

CRESCENT-CLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

CROSSBAYCLUB.COM

 

02/25/09

 

02/25/11

 

 

 

 

 

 

 

ClubCorp USA

 

CROW-CANYON.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

DALLASSTARSCOUNTRYCLUB.COM

 

08/22/03

 

08/22/12

 

 

 

 

 

 

 

ClubCorp USA

 

DAYTONRACQUET.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

DEBARYCC.COM

 

06/26/01

 

08/25/12

 

 

 

 

 

 

 

ClubCorp USA

 

DEERCREEKCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

DELAWAREVALLEYSOCIETY.COM

 

07/21/06

 

07/21/10

 

 

 

 

 

 

 

ClubCorp USA

 

DELAWAREVALLEYSOCIETYOFCLUBS.COM

 

01/10/07

 

01/10/11

 

 

 

 

 

 

 

ClubCorp USA

 

DESERT-FALLS.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

DETROITSOCIETY.COM

 

05/09/00

 

05/09/11

 

 

 

 

 

 

 

ClubCorp USA

 

DEVILSRIDGECC.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

DFWSOCIETY.COM

 

01/11/99

 

01/11/11

 


 

Owner

 

Domain Name

 

Creation
Date

 

Expiration
Date

 

 

 

 

 

 

 

ClubCorp USA

 

DIAMANTECLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

DIAMOND-RUN.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

EAGLESLANDINGCC.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

EASTLAKEWOODLANDSCC.COM

 

05/22/00

 

05/22/11

 

 

 

 

 

 

 

ClubCorp USA

 

ELCAPITANCC.COM

 

03/15/05

 

03/15/12

 

 

 

 

 

 

 

ClubCorp USA

 

ELCAPITANCLUB.COM

 

03/15/05

 

03/15/12

 

 

 

 

 

 

 

ClubCorp USA

 

EMPIRERANCHGOLFCLUB.COM

 

03/19/02

 

03/19/12

 

 

 

 

 

 

 

ClubCorp USA

 

EPCAREFOUNDATION.COM

 

07/09/07

 

07/09/10

 

 

 

 

 

 

 

ClubCorp USA

 

FAIROAKSCLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

FALCONPOINT.COM

 

01/27/99

 

01/27/12

 

 

 

 

 

 

 

ClubCorp USA

 

FIRESTONECOUNTRYCLUB.COM

 

01/06/00

 

01/06/11

 

 

 

 

 

 

 

ClubCorp USA

 

FIRSTCITYCLUB.COM

 

01/11/99

 

01/11/11

 

 

 

 

 

 

 

ClubCorp USA

 

GAINEYRANCHCC.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

GLENEAGLESCLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

GOLDENBEAR-INDIGORUN.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

GOLF-INSTITUTE.COM

 

02/05/02

 

02/05/11

 

 

 

 

 

 

 

ClubCorp USA

 

GRANITEBAYCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

GREENBRIERCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

GREENSPOINTCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

HACKBERRYCREEKCC.COM

 

10/04/99

 

10/04/12

 

 

 

 

 

 

 

ClubCorp USA

 

HAILEPLANTATIONGOLF.COM

 

10/19/00

 

10/19/12

 

 

 

 

 

 

 

ClubCorp USA

 

HARBORSTATIONCC.COM

 

04/20/06

 

04/20/11

 

 

 

 

 

 

 

ClubCorp USA

 

HARBORSTATIONCLUB.COM

 

04/20/06

 

04/20/11

 

 

 

 

 

 

 

ClubCorp USA

 

HARBORSTATIONCOUNTRYCLUB.COM

 

04/20/06

 

04/20/11

 

 

 

 

 

 

 

ClubCorp USA

 

HARBOUR-CHARLESTON.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

HEARTHSTONECLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

HILLSOFLAKEWAYCC.COM

 

02/08/07

 

02/08/11

 

 

 

 

 

 

 

ClubCorp USA

 

HILTONHEADCLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

HILTONHEADOWNERSCLUB.COM

 

07/25/07

 

07/25/12

 

 

 

 

 

 

 

ClubCorp USA

 

HOUSTONCITYCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

HOUSTONSOCIETY.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

HUNTERSGREENCC.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

ICITYCLUB.COM

 

01/10/00

 

01/10/11

 

 

 

 

 

 

 

ClubCorp USA

 

INDIANWELLSCLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

IPSWICHCC.COM

 

07/07/04

 

10/05/12

 

 

 

 

 

 

 

ClubCorp USA

 

IPSWICHCLUB.COM

 

05/08/00

 

05/08/12

 

 

 

 

 

 

 

ClubCorp USA

 

IPSWICHCOUNTRYCLUB.COM

 

07/07/04

 

10/05/12

 

 

 

 

 

 

 

ClubCorp USA

 

ISLANDSOCIETY.COM

 

10/14/99

 

10/14/12

 

 

 

 

 

 

 

ClubCorp USA

 

JACKSONVILLESOCIETY.COM

 

01/10/99

 

01/10/11

 

 

 

 

 

 

 

ClubCorp USA

 

KNOLLWOODCLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

LACIMACLUB.COM

 

07/23/98

 

07/22/10

 

 

 

 

 

 

 

ClubCorp USA

 

LAKEWAYGOLFCLUB.COM

 

01/29/03

 

01/29/12

 

 

 

 

 

 

 

ClubCorp USA

 

LASCOLINASCC.COM

 

02/05/99

 

02/05/11

 

 

 

 

 

 

 

ClubCorp USA

 

LASCOLINASCOUNTRYCLUB.COM

 

07/07/04

 

10/05/12

 

 

 

 

 

 

 

ClubCorp USA

 

LAURELSPRINGSCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

LE-CLUB-MILWAUKEE.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

LOCHMERE.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

LONESTARCLUBS.COM

 

01/02/07

 

01/02/11

 

 

 

 

 

 

 

ClubCorp USA

 

LOSTCREEKCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

MEMBERAPPRECIATIONDAYS.COM

 

09/17/08

 

09/17/10

 

 

 

 

 

 

 

ClubCorp USA

 

MEMBERSHIPWITHOUTWALLS.COM

 

01/21/08

 

01/21/11

 


 

Owner

 

Domain Name

 

Creation
Date

 

Expiration
Date

 

 

 

 

 

 

 

ClubCorp USA

 

METCLUBCHICAGO.COM

 

09/07/01

 

02/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

METFITCLUB.COM

 

01/02/02

 

01/02/11

 

 

 

 

 

 

 

ClubCorp USA

 

MIDAMCLUB.COM

 

02/10/00

 

02/10/13

 

 

 

 

 

 

 

ClubCorp USA

 

MISSIONHILLS.COM

 

03/15/96

 

03/16/12

 

 

 

 

 

 

 

ClubCorp USA

 

MONARCHCLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

MORGANRUN.COM

 

05/24/98

 

05/24/12

 

 

 

 

 

 

 

ClubCorp USA

 

MUSICCITYSOCIETY.COM

 

07/21/06

 

07/21/10

 

 

 

 

 

 

 

ClubCorp USA

 

MYCLUBCORP.COM

 

02/01/10

 

02/01/12

 

 

 

 

 

 

 

ClubCorp USA

 

MYCLUBCORPLIFE.COM

 

01/21/10

 

01/21/12

 

 

 

 

 

 

 

ClubCorp USA

 

NAGSHEADGOLFLINKS.COM

 

12/21/99

 

12/21/12

 

 

 

 

 

 

 

ClubCorp USA

 

NASHVILLECITY.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

NEUSEGOLF.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

NEWENGLANDSOCIETY.COM

 

05/08/06

 

05/08/11

 

 

 

 

 

 

 

ClubCorp USA

 

NEWENGLANDSOCIETYOFCLUBS.COM

 

01/10/07

 

01/10/11

 

 

 

 

 

 

 

ClubCorp USA

 

NEWMEMBERINVITATION.COM

 

01/22/09

 

01/22/11

 

 

 

 

 

 

 

ClubCorp USA

 

NICKLAUSGOLFBIRCHRIVER.COM

 

11/06/03

 

09/07/11

 

 

 

 

 

 

 

ClubCorp USA

 

NICKLAUSGOLFCLUB.COM

 

04/27/99

 

04/27/11

 

 

 

 

 

 

 

ClubCorp USA

 

NICKLAUSGOLFLG.COM

 

09/05/01

 

09/05/12

 

 

 

 

 

 

 

ClubCorp USA

 

NORTHCOASTSOCIETY.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

NORTHWOODCC.COM

 

03/24/99

 

03/24/12

 

 

 

 

 

 

 

ClubCorp USA

 

OAKMONTCLUB.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

OAK-POINTE.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

PEARLMEMBER.COM

 

11/07/08

 

11/07/10

 

 

 

 

 

 

 

ClubCorp USA

 

PIEDMONTCLUB.COM

 

01/09/01

 

01/09/11

 

 

 

 

 

 

 

ClubCorp USA

 

PIEDMONT-NC.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

PITTSBURGHSOCIETY.COM

 

02/10/05

 

02/10/11

 

 

 

 

 

 

 

ClubCorp USA

 

PLAZAHAWAII.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

PLAZASANANTONIO.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

PORTERVALLEY.COM

 

01/08/99

 

01/07/11

 

 

 

 

 

 

 

ClubCorp USA

 

PRESERVEGOLFCLUBOCALA.COM

 

08/17/05

 

08/17/12

 

 

 

 

 

 

 

ClubCorp USA

 

PRIVATECLUBS.ORG

 

01/17/99

 

01/17/11

 

 

 

 

 

 

 

ClubCorp USA

 

PRIVATECLUBSOCIETY.COM

 

08/29/05

 

11/21/11

 

 

 

 

 

 

 

ClubCorp USA

 

PUGETSOUNDSOCIETY.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

PYRAMIDCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

QUAILHOLLOWCC.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

QUEENSHARBOURCC.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

RETURNINGTOTHECLUB.COM

 

05/05/09

 

05/05/11

 

 

 

 

 

 

 

ClubCorp USA

 

RIVERCREEKCLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

RIVERSCLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

RIVERSOCIETY.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

SANANTONIOSOCIETY.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

SANJOSECLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

SEVILLEGCC.COM

 

06/17/08

 

07/01/12

 

 

 

 

 

 

 

ClubCorp USA

 

SEVILLEGCC.NET

 

06/17/08

 

07/01/12

 

 

 

 

 

 

 

ClubCorp USA

 

SHADOWRIDGECC.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

SHADYVALLEY.COM

 

01/11/99

 

01/11/11

 

 

 

 

 

 

 

ClubCorp USA

 

SHOREBYCLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

SIGNATUREGOLD.COM

 

12/22/03

 

11/20/12

 

 

 

 

 

 

 

ClubCorp USA

 

SIGNATURE-GOLD.COM

 

02/26/01

 

02/26/12

 

 

 

 

 

 

 

ClubCorp USA

 

SILVERLAKECLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

SKYLINE-INDY.COM

 

01/18/00

 

01/18/13

 


 

Owner

 

Domain Name

 

Creation
Date

 

Expiration
Date

 

 

 

 

 

 

 

ClubCorp USA

 

SOCIETYPALMBEACH.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

SOUTHCOASTSOCIETY.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

SOUTHERN-TRACE.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

SPRING-VALLEY-LAKE.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

STONEBRIAR.COM

 

01/27/99

 

01/27/11

 

 

 

 

 

 

 

ClubCorp USA

 

STONEBRIARCC.COM

 

07/07/04

 

10/05/12

 

 

 

 

 

 

 

ClubCorp USA

 

STONEBRIARCOUNTRYCLUB.COM

 

07/07/04

 

10/05/12

 

 

 

 

 

 

 

ClubCorp USA

 

STONEBRIDGERANCHCOUNTRYCLUB.COM

 

06/09/05

 

06/09/12

 

 

 

 

 

 

 

ClubCorp USA

 

STONEHENGECLUB.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

SUMMIT-BIRMINGHAM.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

TAMPABAY-SOCIETY.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

TAMPA-PALMSCC.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

TEALBENDGOLF.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

TEXASTECHCLUB.COM

 

05/07/10

 

05/07/12

 

 

 

 

 

 

 

ClubCorp USA

 

THECLUBAT12OAKS.COM

 

03/19/07

 

03/19/12

 

 

 

 

 

 

 

ClubCorp USA

 

THECLUBATKEYCENTER.COM

 

06/06/00

 

06/06/12

 

 

 

 

 

 

 

ClubCorp USA

 

THECLUBATVINITERRA.COM

 

06/10/08

 

06/10/13

 

 

 

 

 

 

 

ClubCorp USA

 

THECLUBCORPEXPERIENCE.COM

 

04/22/09

 

04/22/11

 

 

 

 

 

 

 

ClubCorp USA

 

THECLUBSOFKINGWOOD.COM

 

12/14/04

 

12/14/10

 

 

 

 

 

 

 

ClubCorp USA

 

THECONNECTIONSERIES.COM

 

04/12/02

 

04/12/12

 

 

 

 

 

 

 

ClubCorp USA

 

THECORINTHIANEVENTCENTER.COM

 

05/08/06

 

05/08/11

 

 

 

 

 

 

 

ClubCorp USA

 

THECURRITUCKGOLFCLUB.COM

 

12/17/99

 

12/17/12

 

 

 

 

 

 

 

ClubCorp USA

 

THEDOWNTOWNCLUBHOUSTON.COM

 

04/26/02

 

04/26/11

 

 

 

 

 

 

 

ClubCorp USA

 

THEGOLFCLUB-INDIGORUN.COM

 

09/17/01

 

09/17/12

 

 

 

 

 

 

 

ClubCorp USA

 

THEHILLSCC.COM

 

06/09/00

 

06/09/12

 

 

 

 

 

 

 

ClubCorp USA

 

THEPIEDMONTCLUB.COM

 

08/12/03

 

08/12/11

 

 

 

 

 

 

 

ClubCorp USA

 

THEPRIVATECLUBSOCIETY.COM

 

08/29/05

 

03/19/12

 

 

 

 

 

 

 

ClubCorp USA

 

THERENAISSANCECLUB.COM

 

09/20/99

 

09/20/12

 

 

 

 

 

 

 

ClubCorp USA

 

THESKYLINECLUB.COM

 

02/23/00

 

02/23/12

 

 

 

 

 

 

 

ClubCorp USA

 

THETEXASTECHCLUB.COM

 

05/07/10

 

05/07/12

 

 

 

 

 

 

 

ClubCorp USA

 

THEULTIMATECLUBEXPERIENCE.COM

 

02/18/09

 

02/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

TIMARRONCLUB.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

TOWERCLUB.COM

 

08/14/96

 

08/13/11

 

 

 

 

 

 

 

ClubCorp USA

 

TOWER-DALLAS.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

TOWER-FLORIDA.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

TOWER-TYSONS.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

TOWN-POINT.COM

 

01/18/00

 

01/18/11

 

 

 

 

 

 

 

ClubCorp USA

 

TREESDALEGOLF.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

TRIANGLESOCIETY.COM

 

01/18/00

 

01/18/12

 

 

 

 

 

 

 

ClubCorp USA

 

TRINITIATTOWERCLUB.COM

 

09/18/08

 

09/18/10

 

 

 

 

 

 

 

ClubCorp USA

 

TRINITITOWERDALLAS.COM

 

01/14/09

 

01/14/13

 

 

 

 

 

 

 

ClubCorp USA

 

TROPHYCLUB-DALLAS.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

TROPHYCLUB-GWINNETT.COM

 

01/18/00

 

01/18/13

 

 

 

 

 

 

 

ClubCorp USA

 

TROPHYMEMBERSHIP.COM

 

03/13/09

 

03/13/11

 

 

 

 

 

 

 

ClubCorp USA

 

TURKEYCREEKGC.COM

 

06/27/00

 

06/27/12

 

 

 

 

 

 

 

ClubCorp USA

 

TWELVEOAKSCLUB.COM

 

09/07/06

 

09/07/11

 

 

 

 

 

 

 

ClubCorp USA

 

TWELVEOAKSCOUNTRYCLUB.COM

 

09/07/06

 

09/07/11

 

 

 

 

 

 

 

ClubCorp USA

 

UC-HOUSTON.COM

 

05/11/00

 

05/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

UC-JACKSON.COM

 

04/27/00

 

04/27/11

 

 

 

 

 

 

 

ClubCorp USA

 

UC-JACKSONVILLE.COM

 

05/11/00

 

05/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

UCMASSCLUB.COM

 

06/09/05

 

06/09/12

 


 

Owner

 

Domain Name

 

Creation
Date

 

Expiration
Date

 

 

 

 

 

 

 

ClubCorp USA

 

UC-SANDIEGO.COM

 

05/11/00

 

05/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

UMASSCLUB.COM

 

06/09/05

 

06/09/12

 

 

 

 

 

 

 

ClubCorp USA

 

UNIVERSITYCENTERCLUB.COM

 

03/17/99

 

03/17/12

 

 

 

 

 

 

 

ClubCorp USA

 

UTCLUB.COM

 

10/06/98

 

10/05/12

 

 

 

 

 

 

 

ClubCorp USA

 

WALNUTCREEKCC.COM

 

01/08/99

 

01/08/11

 

 

 

 

 

 

 

ClubCorp USA

 

WESTLAKECLUB.COM

 

04/16/99

 

04/16/12

 

 

 

 

 

 

 

ClubCorp USA

 

WILDFLOWERCLUB.COM

 

05/11/00

 

05/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

WILLOWCREEKCLUB.COM

 

05/11/00

 

05/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

WOODSIDE-PLANTATION.COM

 

05/11/00

 

05/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

YEXDALLAS.COM

 

01/11/10

 

01/11/12

 

 

 

 

 

 

 

ClubCorp USA

 

YEXHOUSTON.COM

 

01/11/10

 

01/11/12

 

 

 

 

 

 

 

ClubCorp, Inc.

 

CLUBCORP.COM

 

04/09/96

 

4/10/2012

 

 

 

 

 

 

 

ClubCorp, Inc.

 

CLUBCORP.NET

 

03/09/96

 

3/10/2012

 

 

 

 

 

 

 

ClubCorp, Inc.

 

CLUBCORP.ORG

 

10/02/02

 

5/12/2012

 

 

 

 

 

 

 

ClubCorp, Inc.

 

CLUBCORPCAREERS.COM

 

02/01/00

 

2/1/2012

 

 

 

 

 

 

 

ClubCorp, Inc.

 

CLUBCORPCHARITYCLASSIC.COM

 

07/16/07

 

7/16/2012

 

 

 

 

 

 

 

ClubCorp, Inc.

 

CLUBCORPTOURNAMENTS.COM

 

07/16/07

 

11/17/2010

 

 

 

 

 

 

 

ClubCorp, Inc.

 

CLUBMEMBER.NET

 

12/18/96

 

12/17/2010

 

 

 

 

 

 

 

ClubCorp, Inc.

 

MEMBERSRESERVE.COM

 

10/26/05

 

10/26/2012

 

 

 

 

 

 

 

ClubCorp, Inc.

 

OURCLUB.COM

 

07/25/97

 

7/24/2011

 

 

 

 

 

 

 

ClubCorp, Inc.

 

PRIVATECLUBS.COM

 

03/12/96

 

3/13/2013

 

 

 

 

 

 

 

ClubCorp, Inc.

 

PRIVATECLUBS.NET

 

01/22/97

 

1/24/2011

 

 

 

 

 

 

 

ClubCorp, Inc.

 

TEEWILLEY.COM

 

07/15/09

 

6/15/2012

 

 

 

 

 

 

 

ClubCorp, Inc.

 

THEOWNERSCLUB.COM

 

12/08/97

 

12/7/2011

 

 

 

 

 

 

 

ClubCorp, Inc.

 

VIRTUALCLUB.COM

 

08/15/96

 

8/14/2010

 


 

SCHEDULE 6

 

E.             SOFTWARE LICENSES

 

Product

 

Vendor

 

Customer Department
(ClubCorp USA, Inc.)

 

 

 

 

 

Oracle

 

Oracle

 

Accounting

 

 

 

 

 

BPC

 

SAP AG

 

Accounting

 

 

 

 

 

CorpTax

 

CorpTax

 

Tax

 

 

 

 

 

Aloha

 

Radiant

 

Clubs

 

 

 

 

 

Kronos

 

KRONOS

 

Payroll

 

 

 

 

 

ProphetLine

 

Spectrum Retail

 

Clubs

 

 

 

 

 

APPWorx

 

Appworx

 

Enterprise

 

 

 

 

 

Vista Plus

 

OpenText

 

Enterprise

 

 

 

 

 

Cater Plus

 

Custom

 

Membership

 

 

 

 

 

MemberPride

 

Custom

 

Membership

 

 

 

 

 

Blackberry Enterprise Server

 

RIM

 

Mobile Users

 

 

 

 

 

Lotus Notes / Domino

 

IBM

 

Enterprise

 

 

 

 

 

Microsoft Office Suite

 

Microsoft

 

Enterprise

 

 

SCHEDULE 7

 

DEPOSIT ACCOUNTS

 

Cash Schedule

 

Bank

 

Account Number

 

Account Type

 

Account Name

 

 

 

 

 

 

 

BANK OF AMERICA

 

#########

 

Depository Account

 

ClubCorp Mezzanine Borrower, LLC

 

 

 

 

 

 

 

BANK OF AMERICA

 

#########

 

Depository Account

 

ClubCorp Mortgage Borrower, LLC

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account

 

ClubCorp Mezzanine Borrower, LLC

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account

 

ClubCorp Mortgage Borrower, LLC

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account

 

ClubCorp Mezzanine Borrower, LLC

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account

 

ClubCorp Mortgage Borrower, LLC

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account

 

ClubCorp Mezzanine Borrower, LLC

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account

 

ClubCorp Mortgage Borrower, LLC

 

 

 

 

 

 

 

BANK OF NEW YORK MELLON

 

#########

 

Depository Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

BANK OF NEW YORK MELLON

 

#########

 

Depository Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

BANK OF NEW YORK MELLON

 

#########

 

Depository Account

 

ClubCorp International, Inc.

 

 

 

 

 

 

 

WACHOVIA

 

#########

 

Depository Account

 

ClubCorp Mezzanine Borrower, LLC

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Depository Account

 

ClubCorp Mortgage Borrower, LLC

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Depository Account

 

ClubCorp Mezzanine Borrower, LLC

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Depository Account

 

ClubCorp Mortgage Borrower, LLC

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Local Depository Account

 

ClubCorp Symphony Towers, Inc.

 

 

 

 

 

 

 

BBVA Compass

 

#########

 

Payment Account

 

Aspen Glen Golf Company, Limited Partnership

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Payment Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

BANK OF NEW YORK MELLON

 

#########

 

Payment Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payment Account

 

ClubCorp Airways Golf, Inc.

 

 

 

 

 

 

 

EXTRACO BANK

 

#########

 

Fiduciary Account

 

Wildflower Country Club, Inc.

 

 

 

 

 

 

 

KEYBANK

 

#########

 

Fiduciary Account

 

The Club at Society Center, Inc.

 


 

Bank

 

Account Number

 

Account Type

 

Account Name

 

 

 

 

 

 

 

SunTrust Bank

 

#########

 

Fiduciary Account

 

Escrow Account on behalf of The 191 Club, Inc. and others

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Fiduciary Account

 

Braemar Country Club, Inc.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Fiduciary Account

 

Canyon Gate at Las Vegas, Inc.

 

 

 

 

 

 

 

BANK OF CURRITUCK

 

#########

 

Local Depository Account

 

Currituck Golf, LLC

 

 

 

 

 

 

 

BB&T

 

#########

 

Local Depository Account

 

Citrus Club, Inc.

 

 

 

 

 

 

 

CITIZENS BANK

 

#########

 

Local Depository Account

 

Treesdale Country Club, Inc.

 

 

 

 

 

 

 

First Niagara

 

#########

 

Local Depository Account

 

Rivers Club, Inc.

 

 

 

 

 

 

 

PNC Bank

 

#########

 

Local Depository Account

 

Diamond Run Club, Inc.

 

 

 

 

 

 

 

RBC Bank USA

 

#########

 

Local Depository Account

 

ClubCorp Golf of North Carolina, L.L.C.

 

 

 

 

 

 

 

THE FIRST NATIONAL BANK OF IPSWICH

 

#########

 

Local Depository Account

 

New England Country Club Management, Inc.

 

 

 

 

 

 

 

Fremont Bank

 

#########

 

Fiduciary Account

 

ClubCorp Crow Canyon Management Corp.

 

 

 

 

 

 

 

Fremont Bank

 

#########

 

Fiduciary Account

 

ClubCorp Crow Canyon Management Corp.

 

 

 

 

 

 

 

BANK OF NEW YORK MELLON

 

#########

 

Local Depository Account

 

The Owner’s Club at Hilton Head, L.P.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payment Account

 

ClubCorp USA , Inc.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payment Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payment Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Local Depository Account

 

ClubCorp Mission Hills Country Club Inc.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Local Depository Account

 

MH Villas, Inc.

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account for benefit of Excluded Subsidiaries

 

ClubCorp USA, Inc.

 


 

Bank

 

Account Number

 

Account Type

 

Account Name

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Depository Account for benefit of Excluded Subsidiaries

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

CDs pledged for equipment lessor

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Payment Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

BANK OF AMERICA

 

#########

 

Payment Account

 

ClubCorp Golf of North Carolina, L.L.C.

 

 

 

 

 

 

 

BANK OF AMERICA

 

#########

 

Payment Account

 

ClubCorp Golf of North Carolina, L.L.C.

 

 

 

 

 

 

 

BANK OF AMERICA

 

#########

 

Payment Account

 

ClubCorp Golf of North Carolina, L.L.C.

 

 

 

 

 

 

 

BANK OF AMERICA

 

#########

 

Payment Account

 

ClubCorp Golf of North Carolina, L.L.C.

 

 

 

 

 

 

 

BANK OF AMERICA

 

#########

 

Payment Account

 

ClubCorp Golf of North Carolina, L.L.C.

 

 

 

 

 

 

 

Freedom Bank

 

#########

 

Payment Account

 

LionsGate Golf Club, Inc.

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Payment Account

 

Akron Management Corp.

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Payment Account

 

West Park Club, Inc.

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Payment Account

 

Oak Pointe Country Club, Inc.

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payment Account

 

Willow Creek Management, Inc.

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Payroll ZBA Account

 

ClubCorp Financial Management Company

 

 

 

 

 

 

 

JPMORGAN CHASE

 

#########

 

Payroll ZBA Account

 

ClubCorp Financial Management Company

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payroll ZBA Account

 

ClubCorp Financial Management Company

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payroll ZBA Account

 

ClubCorp Financial Management Company

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payment Account

 

ClubCorp Financial Management Company

 

 

 

 

 

 

 

WELLS FARGO

 

#########

 

Payroll ZBA Account

 

ClubCorp Financial Management Company

 


 

Investments — Market Securities

 

Bank

 

Account Number

 

Account Type

 

Account Name

 

 

 

 

 

 

 

The Bank of New York Mellon

 

#########

 

Treasury Money Market Account

 

ClubCorp USA, Inc.

 

 

 

 

 

 

 

The Bank of New York Mellon

 

#########

 

Treasury Money Market Account for the benefit of Excluded Subsidiaries

 

ClubCorp Financial Management Corp.

 

 

 

 

 

 

 

JP Morgan Private Bank

 

#########

 

Treasury Money Market Account

 

Clubcorp USA, Inc.

 


 EX-10.10 379 a2202241zex-10_10.htm EX-10.10

Exhibit 10.10

 

INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement is dated as of                   , 201  (this “Agreement”) and is between ClubCorp Holdings, Inc., a Nevada corporation (the “Company”), and [Name of director/officer]  (“Indemnitee”).

 

Background

 

The Company believes that in order to attract and retain highly competent persons to serve as directors or in other capacities, including as officers, it must provide such persons with adequate protection through indemnification against the risks of claims and actions against them arising out of their services to and activities on behalf of the Company.

 

The Company desires and has requested Indemnitee to serve, or to continue to serve, as a [director] [officer] of the Company and, in order to induce the Indemnitee to serve, or to continue to serve, as a [director] [officer] of the Company, the Company is willing to grant the Indemnitee the indemnification provided for herein.  Indemnitee is willing to so serve, or to continue to serve, on the basis that such indemnification be provided.

 

The parties by this Agreement desire to set forth their agreement regarding indemnification and the advancement of expenses.

 

In consideration of Indemnitee’s service to the Company and the covenants and agreements set forth below, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1. Indemnification.

 

To the fullest extent permitted by applicable law:

 

(a) The Company shall indemnify Indemnitee if Indemnitee was or is a party to, is threatened to be made a party to, or is otherwise involved in, as a witness or otherwise, any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative or investigative and whether formal or informal, including any and all appeals, by reason of the fact that Indemnitee is or was or has agreed to serve as a director, officer, employee or agent of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted by Indemnitee in any such capacity.

 

(b) The indemnification provided by this Section 1 shall be from and against all loss and liability suffered and expenses (including attorneys’ fees, costs and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding, including any appeals.

 

Section 2. Advance Payment of Expenses.  To the fullest extent permitted by applicable law, expenses (including attorneys’ fees, costs and expenses) incurred by Indemnitee in appearing at, participating in or defending any action, suit or proceeding or in connection with any enforcement action as contemplated by Section 3(e), shall be paid by the Company in advance of the final disposition of such action, suit or proceeding within 30 days after receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time.  The Indemnitee hereby undertakes to repay any amounts so advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled under this Agreement and applicable law to be indemnified by the Company in respect thereof.  No other form of

 


 

undertaking shall be required of Indemnitee other than the execution of this Agreement.  This Section 2 shall be subject to Section 3(b) and shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 6.

 

Section 3. Procedure for Indemnification; Notification and Defense of Claim.

 

(a) Promptly after receipt by Indemnitee of notice of the commencement of any action, suit or proceeding, Indemnitee shall, if any indemnification, advancement or other claim in respect thereof is to be sought from or made against the Company hereunder, notify the Company in writing of the commencement thereof.  The failure to promptly notify the Company of the commencement of any action, suit or proceeding, or of Indemnitee’s request for indemnification, shall not relieve the Company from any liability that it may have to Indemnitee hereunder, and shall not constitute a waiver or release by Indemnitee or of any rights hereunder or otherwise.  Any notice by Indemnitee under this Section 3 should include such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to enable the Company to determine whether and to what extent Indemnitee is entitled to indemnification.

 

(b) With respect to any action, suit or proceeding of which the Company is so notified as provided in this Agreement, the Company shall, subject to the last two sentences of this paragraph, be entitled to assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election to do so.  After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any subsequently-incurred fees of separate counsel engaged by Indemnitee with respect to the same action, suit or proceeding unless the employment of separate counsel by Indemnitee has been previously authorized in writing by the Company, which authorization will not be unreasonably withheld or delayed.  Notwithstanding the foregoing, if Indemnitee, based on the advice of his or her counsel, shall have reasonably concluded (with written notice being given to the Company setting forth the basis for such conclusion) that, in the conduct of any such defense, there is an actual or potential conflict of interest or position (other than such potential conflicts that are objectively immaterial or remote) between the Company and Indemnitee with respect to a significant issue, then the Company will not be entitled, without the written consent of Indemnitee, to assume such defense.  In addition, the Company will not be entitled, without the written consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company.

 

(c) To the fullest extent permitted by the applicable law, the Company’s assumption of the defense of an action, suit or proceeding in accordance with Section 3(b) will constitute an irrevocable acknowledgement by the Company that the Company shall indemnify Indemnitee, pursuant to Section 1, for any loss and liability suffered by Indemnitee and expenses (including attorneys’ fees, costs and expenses), judgments, fines and amounts paid in settlement by or for the account of Indemnitee incurred in connection therewith.

 

(d) The determination whether to grant Indemnitee’s indemnification request shall be made promptly and in any event within 30 days following the Company’s receipt of a request for indemnification in accordance with Section 3(a).  If the Company determines that Indemnitee is entitled to such indemnification or, as contemplated by Section 3(c) the Company has acknowledged such entitlement, the Company shall make payment to Indemnitee of the indemnifiable amount within such 30 day period.  If the Company is not deemed to have so acknowledged such entitlement or the Company’s determination of whether to grant Indemnitee’s indemnification request shall not have been made within such 30 day period, the requisite determination of entitlement to indemnification shall, subject to Section 6, nonetheless be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) an intentional misstatement by Indemnitee of a material fact in connection with the request for indemnification or (ii) a specific finding (which has become final) by a court of competent jurisdiction that all or any part of such indemnification is expressly prohibited by law.

 

2


 

(e) In the event that (i) the Company determines in accordance with this Section 3 that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company denies a request for indemnification, in whole or in part, or fails to respond or make a determination of entitlement to indemnification within 30 days following receipt of a request for indemnification as described above, (iii) payment of indemnification is not made within such 30 day period, (iv) advancement of expenses is not timely made in accordance with Section 2, or (v) the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in any court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses.  Indemnitee’s expenses (including attorneys’ fees, costs and expenses) incurred in connection with successfully establishing Indemnitee’s right to indemnification or advancement of expenses, in whole or in part, in any such proceeding or otherwise shall also be indemnified by the Company to the fullest extent permitted by applicable law.

 

(f) Indemnitee shall be presumed to be entitled to indemnification and advancement of expenses under this Agreement upon submission of a request therefor in accordance with Section 2 or Section 3, as the case may be.  The Company shall have the burden of proof in overcoming such presumption, and such presumption shall be used as a basis for a determination of entitlement to indemnification and advancement of expenses unless the Company overcomes such presumption by clear and convincing evidence.

 

Section 4. Insurance and Subrogation.

 

(a) The Company shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better, providing Indemnitee with coverage for any liability asserted against, and incurred by, Indemnitee or on Indemnitee’s behalf by reason of the fact that Indemnitee is or was or has agreed to serve as a director, officer, employee or agent of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power or authority to indemnify Indemnitee against such liability and expenses.  Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Company.  If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the applicable policy.  The Company shall thereafter take all necessary or advisable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.

 

(b) Subject to Section 13, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy.  Indemnitee shall execute all papers required and take all reasonable action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.

 

(c) Subject to Section 13, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.

 

3


 

Section 5. Certain Definitions. For purposes of this Agreement, the following definitions shall apply:

 

(a) The term “action, suit or proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed claim, action, suit, arbitration, alternative dispute mechanism or proceeding, whether civil, criminal, administrative or investigative.

 

(b) The term “by reason of the fact that Indemnitee is or was or has agreed to serve as a director, officer, employee or agent of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise” shall be broadly construed and shall include, without limitation, any actual or alleged act or omission to act.

 

(c) The term “expenses” shall be broadly construed and shall include, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees, costs and expenses, and related disbursements, appeal bonds, other out-of-pocket costs and reasonable compensation for time spent by Indemnitee for which Indemnitee is not otherwise compensated by the Company or any third party), actually and reasonably incurred by Indemnitee in connection with either the investigation, defense or appeal of an action, suit or proceeding or establishing or enforcing a right to indemnification under this Agreement or otherwise incurred in connection with a claim that is indemnifiable hereunder.

 

(d) The term “judgments, fines and amounts paid in settlement” shall be broadly construed and shall include, without limitation, all direct and indirect payments of any type or nature whatsoever, as well as any penalties or excise taxes assessed on a person with respect to an employee benefit plan).

 

Section 6. Limitation on Indemnification.  Notwithstanding any other provision herein to the contrary, the Company shall not be obligated pursuant to this Agreement:

 

(a) Claims Initiated by Indemnitee.  To indemnify or advance expenses to Indemnitee with respect to an action, suit or proceeding (or part thereof) initiated voluntarily by Indemnitee (except with respect to any compulsory counterclaim brought by Indemnitee or an action, suit or proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Agreement), unless such action, suit or proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company.

 

(b) Section 16(b) Matters.  To indemnify Indemnitee on account of any suit in which judgment is rendered against Indemnitee for disgorgement of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended.

 

(c) Prohibited by Law.  To indemnify Indemnitee in any circumstance where such indemnification has been determined by a final (not interlocutory) judgment or other adjudication of a court or arbitration or administrative body of competent jurisdiction as to which there is no further right or option of appeal or the time within which an appeal must be filed has expired without such filing to be prohibited by law.

 

Section 7. Certain Settlement Provisions.  The Company shall have no obligation to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action, suit or proceeding without the Company’s prior written consent.  The Company shall not settle any action, suit or proceeding in any manner that would impose any fine or other obligation on Indemnitee without Indemnitee’s prior written consent.  Neither the Company nor Indemnitee will unreasonably withhold his, her, its or their consent to any proposed settlement.

 

4


 

Section 8. Savings Clause.  If any provision or provisions (or portion thereof) of this Agreement shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee if Indemnitee was or is a party to, is threatened to be made a party to, or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative or investigative and whether formal or informal, including appeals, by reason of the fact that Indemnitee is or was or has agreed to serve as a director, officer, employee or agent of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, from and against all loss and liability suffered and expenses (including attorneys’ fees, costs and expenses), judgments, fines and amounts paid in settlement reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding, including any appeals, to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated.

 

Section 9. Contribution.  In order to provide for just and equitable contribution in circumstances in which the indemnification provided for herein is held by a court of competent jurisdiction to be unavailable to Indemnitee in whole or in part, it is agreed that, in such event, the Company shall, to the fullest extent permitted by law, contribute to the payment of all of Indemnitee’s loss and liability suffered and expenses (including attorneys’ fees, costs and expenses), judgments, fines and amounts paid in settlement reasonably incurred by or on behalf of Indemnitee in connection with any action, suit or proceeding, including any appeals, in an amount that is just and equitable in the circumstances; provided that, without limiting the generality of the foregoing, such contribution shall not be required where such holding by the court is due to any limitation on indemnification set forth in Section 4(c), 6 or 7.

 

Section 10. Form and Delivery of Communications.  All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand, upon receipt by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier, one day after deposit with such courier and with written verification of receipt, or (d) sent by email or facsimile transmission, with receipt of oral confirmation that such transmission has been received.  Notice to the Company shall be directed to Ingrid Keiser, Attention: General Counsel, email:  Ingrid.Keiser@clubcorp.com, facsimile: (972) 888-6271, confirmation number: (972) 888-7234.  Notice to Indemnitee shall be directed to [XXXXXX], email:  [XXX@XXX.com], facsimile: [(XXX)-XXX-XXXX], confirmation number: [(XXX)-XXX-XXXX].

 

Section 11. Nonexclusivity.  The provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which Indemnitee may have under any provision of law, in any court in which a proceeding is brought, the Company’s articles of incorporation or bylaws, other agreements or arrangements, or otherwise, and Indemnitee’s rights hereunder shall inure to the benefit of the heirs, executors and administrators of Indemnitee.  No amendment or alteration of the Company’s articles of incorporation or bylaws or any other agreement or arrangement shall limit or otherwise adversely affect the rights provided to Indemnitee under this Agreement.

 

Section 12. No Construction as Employment Agreement.  Nothing contained herein shall be construed as giving Indemnitee any right to be retained as a director of the Company or in the employ of the Company.  For the avoidance of doubt, the indemnification and advancement of expenses provided under this Agreement shall continue as to the Indemnitee even though he or she may have ceased to be a director, officer, employee or agent of the Company.

 

Section 13. Jointly Indemnifiable Claims.  (a) Given that certain jointly indemnifiable claims may arise due to the service of the Indemnitee as a director and/or officer of the Company at the request of the Indemnitee-related entities (as defined below), the Company acknowledges and agrees that the Company shall

 

5


 

be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification or advancement of expenses in connection with any such jointly indemnifiable claim, pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery the Indemnitee may have from the Indemnitee-related entities.  Under no circumstance shall the Company be entitled to any right of subrogation or contribution by the Indemnitee-related entities and no right of advancement or recovery the Indemnitee may have from the Indemnitee-related entities shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company hereunder.  In the event that any of the Indemnitee-related entities shall make any payment to the Indemnitee in respect of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the Indemnitee-related entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Company, and Indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-related entities effectively to bring suit to enforce such rights.  The Company and Indemnitee agree that each of the Indemnitee-related entities shall be third-party beneficiaries with respect to this Section 13(a), entitled to enforce this Section 13(a) as though each such Indemnitee-related entity were a party to this Agreement.

 

(b) For purposes of this Section 13, the following terms shall have the following meanings:

 

(i)                                     The term “Indemnitee-related entities” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Company or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise Indemnitee has agreed, on behalf of the Company or at the Company’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom an Indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation (other than as a result of obligations under an insurance policy).

 

(ii)                                  The term “jointly indemnifiable claims” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which the Indemnitee shall be entitled to indemnification or advancement of expenses from both the Company and any Indemnitee-related entity pursuant to applicable law, any agreement or the certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company or the Indemnitee-related entities, as applicable.

 

Section 14. Interpretation of Agreement.  It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the fullest extent now or hereafter permitted by applicable law.

 

Section 15. Entire Agreement.  This Agreement and the documents expressly referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are expressly superseded by this Agreement.

 

Section 16. Modification and Waiver.  No supplement, modification, waiver or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.  For the avoidance of doubt, this Agreement may not be modified or terminated by the Company without Indemnitee’s prior written consent.

 

Section 17. Successor and Assigns.  All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives.  The Company shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all

 

6


 

of the business or assets of the Company, by written agreement in form and substance reasonably satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

Section 18. Service of Process and Venue.  The Company hereby irrevocably and unconditionally (a) agrees that any action or proceeding arising out of or in connection with this Agreement may be brought in the federal or state courts located in Clark County, Nevada (the “Nevada Courts”), (b) consents to submit to the non-exclusive jurisdiction of the Nevada Courts for purposes of any action or proceeding arising out of or in connection with this Agreement, (c) appoints, to the extent the Company is not otherwise subject to service of process in the State of Nevada, [name] [address] as its agent in the State of Nevada for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon the Company personally within the State of Nevada, (d) waives any objection to the laying of venue of any such action or proceeding in the Nevada Courts, and (e) waives, and agrees not to plead or to make, any claim that any such action or proceeding brought in the Nevada Courts has been brought in an improper or inconvenient forum.

 

Section 19. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada.  If, notwithstanding the foregoing, a court of competent jurisdiction shall make a final determination that the provisions of the law of any state other than Nevada govern indemnification by the Company of Indemnitee, then the indemnification provided under this Agreement shall in all instances be enforceable to the fullest extent permitted under such law, notwithstanding any provision of this Agreement to the contrary.

 

Section 20. Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument, notwithstanding that both parties are not signatories to the original or same counterpart.

 

Section 21.  Headings and Section References.  The section and subsection headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Section references are to this Agreement unless otherwise specified.

 

7


 

This Indemnification Agreement has been duly executed and delivered to be effective as of the date first stated above.

 

 

 

CLUBCORP HOLDINGS, INC.

 

 

 

 

 

 

 

 

By

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

 

INDEMNITEE:

 

 

 

 

 

 

 

 

Name:

 

 

8


 EX-12 380 a2202241zex-12.htm EX-12

Exhibit 12

 

ClubCorp Club Operations, Inc.

Computation of Ratio of Earnings to Fixed Charges

Five Years Ended December 28, 2010

 

 

 

2006

 

2007

 

2008

 

2009

 

2010

 

Earnings:

 

 

 

 

 

 

 

 

 

 

 

(Loss) income before income taxes

 

$

(64,475

)

$

(75,337

)

$

(59,666

)

$

(20,180

)

$

318,711

 

Equity in earnings from unconsolidated ventures

 

(2,383

)

(851

)

(1,514

)

(706

)

(1,309

)

(Loss) income from continuing operations before taxes, noncontrolling interests and equity in earnings from unconsolidated ventures

 

(66,858

)

(76,188

)

(61,180

)

(20,886

)

317,402

 

 

 

 

 

 

 

 

 

 

 

 

 

Add:

 

 

 

 

 

 

 

 

 

 

 

Total fixed charges (per below)

 

40,326

 

115,037

 

102,928

 

66,132

 

64,418

 

Amortization of capitalized interest

 

29

 

89

 

133

 

146

 

149

 

 

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

 

 

Interest capitalized

 

(2,239

)

(2,382

)

(966

)

(69

)

(115

)

 

 

 

 

 

 

 

 

 

 

 

 

Total earnings

 

$

(24,265

)

$

41,320

 

$

42,847

 

$

45,461

 

$

382,083

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed Charges:

 

 

 

 

 

 

 

 

 

 

 

Interest expense

 

$

31,166

 

$

105,408

 

$

94,583

 

$

58,383

 

$

57,165

 

Interest capitalized

 

2,239

 

2,382

 

966

 

69

 

115

 

Estimate of interest within rental expense(a)

 

6,921

 

7,247

 

7,379

 

7,680

 

7,138

 

 

 

 

 

 

 

 

 

 

 

 

 

Total fixed charges

 

$

40,326

 

$

115,037

 

$

102,928

 

$

66,132

 

$

64,418

 

 

 

 

 

 

 

 

 

 

 

 

 

Ratio of earnings to fixed charges(b)

 

—

 

0.36x

 

0.42x

 

0.69x

 

5.93x

 

 

(a)          Fixed charges include the estimated interest component of rent expense (one-third of rent under operating leases) included in income from continuing operations.

 

(b)         For the fiscal years ended December 26, 2006, December 25, 2007, December 30, 2008 and December 29, 2009, earnings were insufficient to cover fixed charges by approximately $64.6 million, $73.7 million, $60.1 million and $20.7 million, respectively.

 


 EX-21 381 a2202241zex-21.htm EX-21

EXHIBIT 21

 

SUBSIDIARIES OF CLUBCORP CLUB OPERATIONS, INC.(1)

 

Subsidiary

 

Jurisdiction of Organization

ClubCorp USA, Inc.(2)

 

Delaware

 

(1) The names of certain subsidiaries which, if considered in the aggregate as a single subsidiary, would not constitute a “significant subsidiary,” have been omitted.

 

(2) ClubCorp USA, Inc. is a direct wholly-owned subsidiary of ClubCorp Club Operations, Inc. 182 consolidated wholly-owned subsidiaries of ClubCorp USA, Inc. operating in the hospitality line of business have been omitted, 174 of which operate in the United States and 8 of which operate in foreign countries.

 


 EX-23.16 382 a2202241zex-23_16.htm EX-23.16

Exhibit 23.16

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the use in this Registration Statement on Form S-4 of our report dated March 28, 2011 relating to the consolidated financial statements of ClubCorp Club Operations, Inc. (ClubCorp, Inc. prior to November 30, 2010) appearing in the Prospectus, which is part of this Registration Statement.  We also consent to the reference to us under the heading “Experts” in such Prospectus.

 

/s/ DELOITTE & TOUCHE LLP

 

 

 

Dallas, Texas

 

March 28, 2011

 

 


 EX-25 383 a2202241zex-25.htm EX-25

Exhibit 25

 

File No.                    

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939

OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

o CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE

PURSUANT TO

SECTION 305(b)(2)

 

WILMINGTON TRUST FSB

(Exact name of trustee as specified in its charter)

 

Federal Charter

 

52-1877389

(State of incorporation)

 

(I.R.S. employer identification no.)

 

Harborplace Tower, Suite 2620

111 S. Calvert Street

Baltimore, Maryland  21202

(410) 468-4325

(Address of principal executive offices)

 

Michael A. DiGregorio

Senior Vice President and General Counsel

Wilmington Trust Company

1100 North Market Street

Wilmington, Delaware  19890-0001

(302) 651-8793

(Name, address and telephone number of agent for service)

 

CLUBCORP CLUB OPERATIONS, INC(1)

(Exact name of obligor as specified in its charter)

 

Delaware

 

27-3894784

(State of incorporation)

 

(I.R.S. employer identification no.)

 

3030 LBJ Freeway

 

 

Dallas, Texas

 

75234

(Address of principal executive offices)

 

(Zip Code)

 

10% Senior Notes due 2018

(Title of the indenture securities)

 

(1)  SEE TABLE OF ADDITIONAL OBLIGORS

 


 

TABLE OF ADDITIONAL OBLIGORS

 

Additional Obligors (as Guarantors of 10% Senior Notes due 2018)

 

Exact name of additional obligor

 

State or other
jurisdiction of
organization

 

I.R.S.
Employer
Identification
Number

 

Primary
Standard
Industrial
Classification
Code
Number

191 Athletic Club Management Company, LLC

 

Delaware

 

26-4052367

 

7997

191 CC Operating Co., LLC

 

Delaware

 

27-2164436

 

7997

Akron Management Corp.

 

Ohio

 

75-1744518

 

7997

Aliso Viejo Golf Club Joint Venture

 

California

 

33-0760752

 

7997

Anthem Golf, LLC

 

Arizona

 

38-3739361

 

7997

April Sound Management Corp.

 

Texas

 

75-1656690

 

7997

Aspen Glen Golf Club Management Company

 

Colorado

 

75-2710967

 

7997

Athletic Club at the Equitable Center, Inc.

 

New York

 

75-2104208

 

7997

AZ Club, LLC

 

Delaware

 

26-1385452

 

7997

Barton Creek Resort & Clubs, Inc.

 

Texas

 

75-2406688

 

7997

Bay Oaks Country Club, Inc.

 

Texas

 

75-2356613

 

7997

Bluegrass Club, LLC

 

Tennessee

 

32-0167856

 

7997

Brookhaven Country Club, Inc.

 

Texas

 

75-0976558

 

7997

Canyon Gate at Las Vegas, Inc.

 

Nevada

 

75-2435654

 

7997

Capital City Club of Montgomery, Inc.

 

Alabama

 

75-1547992

 

7997

Capital City Club of Raleigh, Inc.

 

North Carolina

 

75-1551311

 

7997

CCA Golf Course Holdco, LLC

 

Delaware

 

20-5997878

 

7997

CCA Mezzanine Holdco, LLC

 

Delaware

 

20-5997962

 

7997

Centre Club, Inc.

 

Florida

 

75-1843838

 

7997

Citrus Club, Inc.

 

Florida

 

75-1322645

 

7997

City Club of Washington, Inc.

 

Washington, D.C.

 

75-2061765

 

7997

Club at Boston College, Inc.

 

Massachusetts

 

75-2710023

 

7997

Club Le Conte, Inc.

 

Tennessee

 

75-1597579

 

7997

ClubCorp — Asia

 

Nevada

 

75-2376497

 

7997

ClubCorp Airways Golf, Inc.

 

Delaware

 

75-2149806

 

7997

ClubCorp Aliso Viejo Holding Corp.

 

Delaware

 

75-2671651

 

7997

ClubCorp Asia Investments Inc.

 

Nevada

 

75-2538528

 

7997

ClubCorp Aven Holdings, Inc.

 

Delaware

 

75-2933420

 

7997

ClubCorp Braemar Country Club, Inc.

 

Delaware

 

95-2040525

 

7997

ClubCorp Bunker Hill Club, Inc.

 

Delaware

 

75-2200418

 

7997

ClubCorp Buying Services, Inc.

 

Delaware

 

75-2932004

 

7997

ClubCorp Canyon Crest Country Club, Inc.

 

Delaware

 

95-2494912

 

7997

ClubCorp Center Club, Inc.

 

Delaware

 

75-1836936

 

7997

ClubCorp Coto Property Holdings, Inc.

 

Delaware

 

75-2572520

 

7997

ClubCorp Crow Canyon Management Corp.

 

Delaware

 

75-1730343

 

7997

 


 

Exact name of additional obligor

 

State or other
jurisdiction of
organization

 

I.R.S.
Employer
Identification
Number

 

Primary
Standard
Industrial
Classification
Code
Number

ClubCorp Desert Falls Country Club, Inc.

 

Delaware

 

75-2501440

 

7997

ClubCorp Financial Management Company

 

Nevada

 

75-2408217

 

7997

ClubCorp GCL Corporation

 

Delaware

 

75-2693309

 

7997

ClubCorp Gen Par of Texas, L.L.C.

 

Delaware

 

75-2810007

 

7997

ClubCorp Golf of California, L.L.C.

 

Delaware

 

74-2910563

 

7997

ClubCorp Golf of Florida, L.L.C.

 

Delaware

 

74-2910562

 

7997

ClubCorp Golf of Georgia, L.P.

 

Georgia

 

75-2807677

 

7997

ClubCorp Golf of North Carolina, L.L.C.

 

Delaware

 

74-2910564

 

7997

ClubCorp Golf of Texas, L.P.

 

Texas

 

75-2807428

 

7997

ClubCorp Granite Bay Management, Inc.

 

Delaware

 

68-0268581

 

7997

ClubCorp Graphics, Inc.

 

Florida

 

75-2570324

 

7997

ClubCorp Hamlet, LLC

 

Delaware

 

27-5160613

 

7997

ClubCorp International, Inc.

 

Nevada

 

75-2182069

 

7997

ClubCorp IW Golf Club, Inc.

 

Delaware

 

75-2536737

 

7997

ClubCorp Management Company for Stone Creek, LLC

 

Delaware

 

26-1387499

 

7997

ClubCorp Mexico, Inc.

 

Nevada

 

75-2658417

 

7997

ClubCorp Mezzanine Borrower, LLC

 

Delaware

 

20-5997636

 

7997

ClubCorp Mission Hills Country Club, Inc.

 

Delaware

 

75-2502965

 

7997

ClubCorp Mortgage Borrower, LLC

 

Delaware

 

20-5997707

 

7997

ClubCorp Porter Valley Country Club, Inc.

 

Delaware

 

95-2487346

 

7997

ClubCorp Publications, Inc.

 

Nevada

 

75-1825377

 

7997

ClubCorp San Jose Club, Inc.

 

Delaware

 

75-2670415

 

7997

ClubCorp Shadow Ridge Golf Club, Inc.

 

Delaware

 

75-1686724

 

7997

ClubCorp Spring Valley Lake Country Club, Inc.

 

Delaware

 

75-1473014

 

7997

ClubCorp Symphony Towers Club, Inc.

 

Delaware

 

75-2061871

 

7997

ClubCorp Teal Bend Golf Club, Inc.

 

Delaware

 

75-2649978

 

7997

ClubCorp TTC, LLC

 

Delaware

 

27-2491368

 

7997

ClubCorp Turkey Creek Golf Club, Inc.

 

Delaware

 

75-2789352

 

7997

ClubCorp USA, Inc.

 

Delaware

 

75-2114856

 

7997

ClubCorp Willow Creek, LLC

 

Delaware

 

27-5160270

 

7997

ClubCorp Wind Watch, LLC

 

Delaware

 

27-5160463

 

7997

Columbia Capital City Club Corp.

 

South Carolina

 

75-2427265

 

7997

Columbia Tower Club, Inc.

 

Washington

 

75-2014780

 

7997

Countryside Country Club, Inc.

 

Florida

 

75-1560231

 

7997

Currituck Golf, LLC

 

Delaware

 

27-3094230

 

7997

Dallas Tower Club, Inc.

 

Texas

 

75-2044758

 

7997

Dayton Racquet Club, Inc.

 

Ohio

 

75-1315276

 

7997

DeBary Management Corp.

 

Florida

 

75-2756690

 

7997

 


 

Exact name of additional obligor

 

State or other
jurisdiction of
organization

 

I.R.S.
Employer
Identification
Number

 

Primary
Standard
Industrial
Classification
Code
Number

Diamante’ Golf Club Management, Inc.

 

Arkansas

 

75-2541981

 

7997

Diamante’ Golf Club Partners, Inc.

 

Arkansas

 

75-2541980

 

7997

Diamond Run Club, Inc.

 

Pennsylvania

 

75-2793869

 

7997

Empire Ranch, LLC

 

Delaware

 

75-2955822

 

7997

Fair Oaks Club Corp.

 

Texas

 

75-2135345

 

7997

Farms of New Kent Management, LLC

 

Delaware

 

26-2238822

 

7997

FFFC Golf Acquisitions, L.L.C.

 

Delaware

 

75-2114856

 

7997

First City Club Management, Inc.

 

Georgia

 

75-1970473

 

7997

Fort Bend Acquisition Corp.

 

Texas

 

75-2471088

 

7997

GCC Asset Management, Inc.

 

Texas

 

75-2382807

 

7997

Glendale Management Corp.

 

Wisconsin

 

75-1973978

 

7997

Glendale Racquet Club, Inc.

 

Wisconsin

 

39-1147563

 

7997

GP Bear’s Best Atlanta, Inc.

 

Georgia

 

75-2824663

 

7997

GP Bear’s Best Las Vegas, Inc.

 

Nevada

 

75-2862989

 

7997

GRanch Golf Club, Inc.

 

Arizona

 

75-2594364

 

7997

Greenbrier Country Club, Inc.

 

Virginia

 

75-2166235

 

7997

Greenspoint Club, Inc.

 

Texas

 

75-1788013

 

7997

Hackberry Creek Country Club, Inc.

 

Texas

 

75-1836955

 

7997

Haile Plantation Management Corp.

 

Florida

 

75-2587862

 

7997

Harbour Club of Charleston, Inc.

 

South Carolina

 

75-2481681

 

7997

Hearthstone Country Club, Inc.

 

Texas

 

75-1560896

 

7997

Hill Country Golf, Inc.

 

Texas

 

75-1467720

 

7997

Hills II of Lakeway, Inc.

 

Texas

 

75-2839814

 

7997

Houston City Club, Inc.

 

Texas

 

75-1613884

 

7997

HPG, L.C.

 

Florida

 

59-3159082

 

7997

Hunter’s Green Acquisition Corp.

 

Florida

 

75-2623675

 

7997

Indigo Run Asset Corp.

 

South Carolina

 

75-2626876

 

7997

Irving Club Acquisition Corp.

 

Texas

 

75-2433335

 

7997

Kingwood Country Club, Inc.

 

Texas

 

75-1384721

 

7997

Knollwood Country Club, Inc.

 

Indiana

 

75-1860187

 

7997

La Cima Club, Inc.

 

Texas

 

75-1945200

 

7997

Lakeway Clubs, Inc.

 

Texas

 

74-2751365

 

7997

Laurel Springs Holdco, LLC

 

Delaware

 

27-5160857

 

7997

LionsGate Golf Club, Inc.

 

Kansas

 

75-2810637

 

7997

MAC Club, LLC

 

Delaware

 

30-0390557

 

7997

Management Company for Eagle Ridge and The Preserve

 

Florida

 

75-2420359

 

7997

Manager for CCHH, Inc.

 

South Carolina

 

75-2558851

 

7997

Master Club, Inc.

 

Nevada

 

75-2803822

 

7997

 


 

Exact name of additional obligor

 

State or other
jurisdiction of
organization

 

I.R.S.
Employer
Identification
Number

 

Primary
Standard
Industrial
Classification
Code
Number

Memorial Stadium Club Management Corp.

 

Texas

 

75-2772291

 

7997

Memphis City Club, Inc.

 

Tennessee

 

75-2187471

 

7997

MH Villas, Inc.

 

California

 

75-2656914

 

7997

Monarch EP Management Corp.

 

Florida

 

75-2569192

 

7997

Nashville Club Management, Inc.

 

Tennessee

 

75-1973979

 

7997

New England Country Club Management, Inc.

 

Massachusetts

 

75-2481683

 

7997

Northwood Management Corp.

 

Georgia

 

75-1617671

 

7997

Oak Pointe Country Club, Inc.

 

Michigan

 

75-2413363

 

7997

Oakmont Management Corp.

 

Texas

 

75-2457729

 

7997

Operations Company for Homestead, Inc.

 

Virginia

 

75-2515916

 

7997

Owners Club Asset Company

 

Delaware

 

75-2756700

 

7997

Piedmont Club, Inc.

 

North Carolina

 

75-2070602

 

7997

Piedmont Golfers’ Club LLC

 

South Carolina

 

75-2114856

 

7997

Pyramid Club Management, Inc.

 

Pennsylvania

 

75-2376505

 

7997

Quail Hollow Management, Inc.

 

Ohio

 

75-1904889

 

7997

Queens Harbour Corporation

 

Florida

 

75-2509681

 

7997

Renaissance Club, Inc.

 

Michigan

 

75-1531680

 

7997

Richardson Country Club Corp.

 

Texas

 

75-1335506

 

7997

River Creek Country Club, Inc.

 

Virginia

 

75-2627677

 

7997

Rivers Club, Inc.

 

Pennsylvania

 

75-1781096

 

7997

Shady Valley Management Corp.

 

Texas

 

75-2406228

 

7997

Shoreby Club Management, Inc.

 

Ohio

 

75-2266610

 

7997

Silver Lake Management Corp.

 

Ohio

 

75-2283521

 

7997

Skyline Club, Inc.

 

Indiana

 

75-1728926

 

7997

Society Management, Inc.

 

Nevada

 

75-2644439

 

7997

Southern Trace Country Club of Shreveport, Inc.

 

Louisiana

 

75-2381261

 

7997

Stonebriar Management Corp.

 

Texas

 

75-2526115

 

7997

Stonehenge Club, Inc.

 

Virginia

 

75-2587252

 

7997

Tampa Palms Club, Inc.

 

Florida

 

75-2457726

 

7997

The 191 Club, Inc.

 

Georgia

 

75-2351711

 

7997

The Buckhead Club, Inc.

 

Georgia

 

75-2108173

 

7997

The Club at Cimarron, Inc.

 

Texas

 

75-2345619

 

7997

The Club at Society Center, Inc.

 

Ohio

 

75-2303794

 

7997

The Commerce Club, Inc.

 

South Carolina

 

75-1870073

 

7997

The Downtown Club, Inc.

 

Texas

 

75-1476400

 

7997

The Manager of the Owner’s Club, Inc.

 

South Carolina

 

75-2584733

 

7997

The Metropolitan Club of Chicago, Inc.

 

Illinois

 

75-1402371

 

7997

The Owner’s Club, Inc.

 

Delaware

 

75-2608736

 

7997

 


 

Exact name of additional obligor

 

State or other
jurisdiction of
organization

 

I.R.S.
Employer
Identification
Number

 

Primary
Standard
Industrial
Classification
Code
Number

The Owners Club at Hilton Head, L.P.

 

South Carolina

 

75-2584943

 

7997

The Owner’s Club of South Carolina, L.L.C.

 

Delaware

 

75-2584737

 

7997

The Plaza Club of San Antonio, Inc.

 

Texas

 

75-1395007

 

7997

The Summit Club, Inc.

 

Alabama

 

75-2277008

 

7997

The University Club, Inc.

 

Mississippi

 

75-1428326

 

7997

Timarron Golf Club, Inc.

 

Texas

 

75-2650747

 

7997

Tower City Club of Virginia, Inc.

 

Virginia

 

75-2495420

 

7997

Tower Club of Dallas, Inc.

 

Texas

 

75-1749422

 

7997

Tower Club, Inc.

 

Florida

 

75-1401441

 

7997

Town Point Club, Inc.

 

Virginia

 

75-1844323

 

7997

Treesdale Country Club, Inc.

 

Pennsylvania

 

75-2491095

 

7997

UMass Club Management, LLC

 

Delaware

 

61-1497383

 

7997

UNC Alumni Club Management, Inc.

 

North Carolina

 

75-2420355

 

7997

University Club Management Co., Inc.

 

Florida

 

75-2659214

 

7997

University Club, Inc.

 

Florida

 

75-1252248

 

7997

Walnut Creek Management Corporation

 

Texas

 

75-1486903

 

7997

West Park Club, Inc.

 

Texas

 

75-2281293

 

7997

Westlake City Club, Inc.

 

Texas

 

75-1800134

 

7997

Wildflower Country Club, Inc.

 

Texas

 

75-2033118

 

7997

Willow Creek Management, Inc.

 

Texas

 

75-2511017

 

7997

Woodside Plantation Country Club, Inc.

 

South Carolina

 

75-2338803

 

7997

 

*                 The address, including zip code, and telephone number, including area code, of each of the co-obligor is 3030 LBJ Freeway, Suite 600, Dallas, Texas 75234, Attn: General Counsel, (972) 243-6191.

 


 

Item 1.         GENERAL INFORMATION.  Furnish the following information as to the trustee:

 

(a)

Name and address of each examining or supervising authority to which it is subject.

 

Office of Thrift Supervision

 

1475 Peachtree Street, N.E.

 

Atlanta, GA 30309

 

 

(b)

Whether it is authorized to exercise corporate trust powers.

 

 

 

Yes.

 

Item 2.         AFFILIATIONS WITH THE OBLIGOR.  If the obligor is an affiliate of the trustee, describe each affiliation:

 

Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee.

 

Item 16.       LIST OF EXHIBITS.  List below are all exhibits filed as part of this Statement of Eligibility and Qualification.

 

1.               A copy of the Federal Stock Savings Bank Charter for Wilmington Trust FSB, incorporated by reference to Exhibit 1 of Form T-1.

 

2.               The authority of Wilmington Trust FSB to commence business was granted under the Federal Stock Savings Bank Charter for Wilmington Trust FSB, incorporated herein by reference to Exhibit 1 of Form T-1.

 

3.               The authorization to exercise corporate trust powers was granted under the Federal Stock Savings Bank charter, incorporated herein by reference to Exhibit 1 of Form T-1.

 

4.               A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4 of form T-1.

 

5.               Not applicable.

 

6.               The consent of Trustee as required by Section 321(b) of the Trust Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of Form T-1.

 

7.               Current Report of the Condition of Trustee, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

 

8.               Not applicable.

 

9.             Not applicable.

 


 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust FSB, a federal savings bank, organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Guilford and State of Connecticut on the 9th day of March, 2011.

 

 

 

WILMINGTON TRUST FSB

 

 

 

 

 

By:

/s/ Joseph P. O’Donnell

 

Name:  Joseph P. O’Donnell

 

Title:  Vice President

 

 

EXHIBIT 1

 

Charter No. 6012

 

FEDERAL STOCK SAVINGS BANK CHARTER

 

WILMINGTON TRUST FSB

 

As existing on June 10, 1994.

 


 

FEDERAL STOCK SAVINGS BANK CHARTER

 

WILMINGTON TRUST FSB

 

SECTION 1.  Corporate Title.  The full corporate title of the savings bank is Wilmington Trust FSB.

 

SECTION 2.  Office.  The home office shall be located in Salisbury, Maryland.

 

SECTION 3.  Duration.  The duration of the savings bank is perpetual.

 

SECTION 4.  Purpose and Powers.  The purpose of the savings bank is to pursue any or all of the lawful objectives of a Federal savings bank chartered under Section 5 of the Home Owners’ Loan Act and to exercise all of the express, implied, and incidental powers conferred thereby and by all acts amendatory thereof and supplemental thereto, subject to the Constitution and laws of the United States as they are now in effect, or as they may hereafter be amended, and subject to all lawful and applicable rules, regulations, and orders of the Office of Thrift Supervision (“OTS”).

 

SECTION 5.  Capital Stock.  The total number of shares of all classes of the capital stock which the savings bank has the authority to issue is 10,000,000, all of which shall be common stock of par value of $1.00 per share.  The shares may be issued from time to time as authorized by the Board of Directors without the approval of its shareholders, except as otherwise provided in this Section 5 or to the extent that such approval is required by governing law, rule, or regulation.  The consideration for the issuance of the shares shall be paid in full before their issuance and shall not be less than the par value.  Neither promissory notes nor future services shall constitute payment or part payment for the issuance of shares of the savings bank.  The consideration for the shares shall be cash, tangible or intangible property (to the extent direct investment in such property would be permitted to the savings bank), labor, or services actually performed for the savings bank, or any combination of the foregoing.  In the absence of actual fraud in the transaction, the value of such property, labor, or services, as determined by the Board of Directors of the savings bank, shall be conclusive.  Upon payment of such consideration, such shares shall be deemed to be fully paid and nonassessable.  In the case of a stock dividend, that part of the surplus of the savings bank which is transferred to stated capital upon the issuance of shares of as a share dividend shall be deemed to be the consideration for their issuance.

 

Except for shares issuable in connection with the conversion of the savings bank from the mutual to stock form of capitalization, no shares of common stock (including shares issuable upon conversion, exchange, or exercise of other securities) shall be issued, directly or indirectly, to officers, directors, or controlling persons of the savings bank other than as part of a general public offering or as qualifying shares to a director, unless the issuance or the plan under which they would be issued has been approved by a majority of the total votes eligible to be cast as a legal meeting.

 


 

The holders of the common stock shall exclusively possess all voting power.  Each holder of shares of common stock shall be entitled to one vote for each share held by such holder, except as to the cumulation of votes for the election of directors.  Subject to any provision for a liquidation account, in the event of any liquidation, dissolution, or winding up of the savings bank, the holders of the common stock shall be entitled, after payment or provision for payment of all debts and liabilities of the savings bank, to receive the remaining assets of the savings bank available for distribution, in cash or in kind.  Each share of common stock shall have the same relative rights as and be identical in all respects with all the other shares of common stock.

 

SECTION 6.  Preemptive Rights.  Holders of the capital stock of the savings bank shall not be entitled to preemptive rights with respect to any shares of the savings bank which may be issued.

 

SECTION 7.  Directors.  The savings bank shall be under the direction of a Board of Directors.  The authorized number of directors, as stated in the savings bank’s bylaws, shall not be fewer than five nor more than fifteen except when a greater number is approved by the OTS.

 

SECTION 8.  Amendment of Charter.  Except as provided in Section 5, no amendment, addition, alteration, change, or repeal of this charter shall be made, unless such is first proposed by the Board of Directors of the savings bank, then preliminarily approved by the OTS, which preliminary approval may be granted by the OTS pursuant to regulations specifying preapproved charter amendments, and thereafter approved by the shareholders by a majority of the total votes eligible to be cast at a legal.  Any amendment, addition, alteration, change, or repeal so acted upon shall be effective upon filing with the OTS in accordance with regulatory procedures or on such other date as the OTS may specify in its preliminary approval.

 


 

EXHIBIT 4

 

BY-LAWS OF WILMINGTON TRUST FSB

 

As Amended April 28, 2008

 

ARTICLE I — HOME OFFICES

 

The home office of this savings bank shall be at 111 South Calvert Street, Suite 2620, Baltimore, Maryland.

 

ARTICLE II — SHAREHOLDERS

 

SECTION 1.  Place of Meetings.  All annual and special meetings of shareholders shall be held at the home office of the savings bank or at such other place in or outside the State in which the principal place of business of the savings bank is located as the board of directors may determine.

 

SECTION 2.  Annual Meeting.  A meeting of the shareholders of the savings bank for the election of directors and for the transaction of any other business of the savings bank shall be held annually within 120 days after the end of the savings bank’s fiscal year or at such other date and time within at such 120-day period as the board of directors may determine.

 

SECTION 3.  Special Meetings.  Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by the regulations of the Office of Thrift Supervision (“OTS”), may be called at any time by the chairman of the board, one of the presidents or a majority of the board of directors, and shall be called by the chairman of the board, one of the presidents, or the secretary upon the written request of the holders of not less than one-tenth of all of the outstanding capital stock of the savings bank entitled to vote at the meeting.  Such written request shall state the purpose or purposes of the meeting and shall be delivered to the home office of the savings bank addressed to the chairman of the board, one of the presidents, or the secretary.

 

SECTION 4.  Conduct of Meetings.  The board of directors shall designate, when present, either the chairman of the board or one of the presidents to preside at such meetings.

 

SECTION 5.  Notice of Meeting.  Written notice stating the place, day and hour of the meeting and the purpose(s) for which the meeting is called shall be delivered not fewer than 20 nor more than 50 days before the date of the meeting, either personally or by mail, by or at the direction of the chairman of the board, one of the presidents, the secretary or the directors calling the meeting, to each shareholder of record entitled to vote at such meeting.  If mailed, such notice shall be deemed to be delivered when deposited in the mail, addressed to the shareholder at the address as it appears on the stock transfer books or records of the savings bank as of the record date prescribed in Section 6 of this Article II with postage prepaid.  When any shareholders’ meeting, either annual or special, is adjourned for 30 days or more, notice of the adjourned meeting shall be given as in the

 


 

case of an original meeting.  It shall not be necessary to give any notice of the time or place of any meeting adjourned for less than 30 days or of the business to be transacted at the meeting, other than an announcement at the meeting at which such adjournment is taken.

 

SECTION 6.  Fixing of Record Date.  For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors shall fix in advance a date as the record date for any such determination of shareholders.  Such date in any case shall be not more than 60 days and, in case of a meeting of shareholders, not fewer than 10 days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment.

 

SECTION 7.  Voting Lists.  At least 20 days before each meeting of the shareholders, the officer or agent having charge of the stock transfer books for shares of the savings bank shall make a complete list of shareholders entitled to vote at such meeting, or any adjournment, arranged in alphabetical order, with the address and the number of shares held by each.  This list of shareholders shall be kept on file at the home office of the savings bank and shall be subject to inspection by any shareholder at any time during usual business hours for a period of 20 days prior to such meeting.  Such list also shall be produced and kept open at the time and place of the meeting and shall be subject to inspection by any shareholder during the entire time of the meeting.  The original stock transfer book shall constitute prima facie evidence of the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders.

 

In lieu of making the shareholder list available for inspection by shareholders as provided in the preceding paragraph, the board of directors may elect to follow the procedures prescribed in §552.6(d) of the OTS’s regulations as now or hereafter in effect.

 

SECTION 8.  Quorum.  A majority of the outstanding shares of the savings bank entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders.  If less than a majority of the outstanding shares is represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice.  At such adjourned meeting at which a quorum is present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.  The shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to constitute less than a quorum.

 

SECTION 9.  Proxies.  At all meetings of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact.  Proxies solicited on behalf of the management shall be voted as directed by the shareholder or, in the absence of such direction, as determined by a majority of the board of directors.  No proxy shall be valid more than eleven months from the date of its execution except for a proxy coupled with an interest.

 


 

SECTION 10.  Voting of Shares in the Name of Two or More Persons.  When ownership stands in the name of two or more persons, in the absence of written directions to the savings bank to the contrary, at any meeting of the shareholders of the savings bank any one or more of such shareholders may cast, in person or by proxy, all votes to which such ownership is entitled.  In the event an attempt is made to cast conflicting votes, in person or by proxy, by the several persons in whose names shares of stock stand, the vote or votes to which those persons are entitled shall be cast as directed by a majority of those holding such and present in person or by proxy at such meeting, but no votes shall be cast for such stock if a majority cannot agree.

 

SECTION 11.  Voting of Shares by Certain Holders.  Shares standing in the name of another corporation may be voted by any officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine.  Shares held by an administrator, executor, guardian, or conservator may be voted by him, either in person or by proxy, without a transfer of such shares into his name.  Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him without a transfer of such shares into his name.  Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer into his name if authority to do so is contained in an appropriate order of the court or other public authority by which such receiver was appointed.

 

A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred.

 

Neither treasury shares of its own stock held by the savings bank nor shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation are held by the savings bank, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting.

 

SECTION 12.  Cumulative Voting.  Every shareholder entitled to vote at an election for directors shall have the right to vote, in person by proxy, the number of shares owned by the shareholder for as many persons as there are directors to be elected and for whose election the shareholder has a right to vote, or to cumulate the votes by giving one candidate as many votes as the number of such directors to be elected multiplied by the number of shares shall equal or by distributing such votes on the same principle among any number of candidates.

 

SECTION 13.  Inspectors of Election.  In advance of any meeting of shareholders, the board of directors may appoint any persons other than nominees for office as inspectors of election to act at such meeting or any adjournment.  The number of inspectors shall be either one or three.  Any such appointment shall not be altered at the meeting.  If inspectors of election are not so appointed, the chairman of the board or one of the presidents may, or on the request of not fewer than 10 percent of the votes represented at the meeting shall, make such appointment at the meeting.  If appointed at the meeting, the majority of the votes present shall determine whether one or three inspectors are to be appointed.  In case any person appointed as inspector fails to appear or fails or refuses to act, the vacancy may be filled by appointment by the board of directors in advance of the meeting or at the meeting by the chairman of the board or one of the presidents.

 


 

Unless otherwise prescribed by regulations of the OTS, the duties of such inspectors shall include: determining the number of shares and the voting power of each share, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity and effect of proxies; receiving votes, ballots or consents; hearing and determining all challenges and questions in any way arising in connection with the rights to vote; counting and tabulating all votes or consents; determining the result; and such acts as may be proper to conduct the election or vote with fairness to all shareholders.

 

SECTION 14.  Director Elections.  The board of directors may nominate candidates for election as directors.  Ballots bearing the names of all persons nominated by the board of directors and by shareholders shall be provided for use at the annual meeting.  However, if the board of directors shall fail or refuse to act at least 20 days prior to the annual meeting, nominations for directors may be made at the annual meeting by any shareholder entitled to vote and shall be voted upon.

 

SECTION 15.  New Business.  Any new business to be taken up at the annual meeting shall be stated in writing and filed with the secretary of the savings bank at least five days before the annual meeting, and all business so stated, proposed and filed shall be considered at the annual meeting; but no other proposal shall be acted upon at the annual meeting.  Any shareholder may make any other proposal at the annual meeting and the same may be discussed and considered, but unless stated in writing and filed with the secretary at least five days before the meeting, such proposal shall be laid over for action at an adjourned, special or annual meeting of the shareholders taking place 30 days or more thereafter.  This provision shall not prevent the consideration and approval or disapproval at the annual meeting of reports of officers, directors, and committees; but in connection with such reports, no new business shall be acted upon at such annual meeting unless stated and filed as herein provided.

 

SECTION 16.  Informal Action by Shareholders.  Any action required to be taken at a meeting of the shareholders, or any other action which may be taken at a meeting of the shareholders, may be taken without a meeting if consent in writing, setting forth the action so taken, shall be given by all shareholders entitled to vote with respect to the subject matter.

 

ARTICLE III — BOARD OF DIRECTORS

 

SECTION 1.  General Powers.  The business and affairs of this savings bank shall be under the direction of its board of directors.  The board of directors shall annually elect a chairman of the board and one or more presidents and shall designate, when present, either the chairman of the board, one of the presidents, an executive vice president, a senior vice president, or a vice president to preside at its meetings.

 

SECTION 2.  Number and Term.  The board of directors shall consist of six members.  The directors shall be elected annually, and shall serve for the ensuing year and until their respective successors are duly elected and qualified.

 


 

SECTION 3.  Regular and Special Meetings.  Regular and special meetings of the board of directors may be called by or at the request of the chairman of the board, one of the presidents or one-third of the directors.  The persons authorized to call meetings of the board of directors may fix any place as the place for holding that meeting.

 

Members of the board of directors may participate in regular or special meetings by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other.  Such participation shall constitute presence in person and, if the board of directors so determines, shall constitute attendance for purpose of entitlement to compensation pursuant to Section 11 of this Article.

 

SECTION 4.  Qualification.  Each director shall at all times be the beneficial owner of not less than 100 shares of capital stock of the savings bank unless the savings bank is a wholly owned subsidiary of a holding company.

 

SECTION 5.  Notice.  Written notice of any special meeting shall be given to each director at least two days prior thereto when delivered personally or by telegram or at least five days prior thereto when delivered by mail at the address at which the director is most likely to be reached.  Such notice shall be deemed to be delivered when deposited in the mail so addressed, with postage prepaid if mailed or when delivered to the telegraph company if sent by telegram.  Any director may waive notice of any meeting by a writing filed with the secretary.  The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.  Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need to be specified in the notice or waiver of notice of such meeting.

 

SECTION 6.  Quorum.  A majority of the number of directors fixed by Section 2 of this Article III shall constitute a quorum for the transaction of business at any meeting of the board of directors; but if less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time.  Notice of any adjourned meeting shall be given in the same manner as prescribed by Section 5 of this Article III.

 

SECTION 7.  Manner of Acting.  The act of a majority of the directors present at a duly convened meeting at which a quorum is present shall be the act of the board of directors, unless a greater number is prescribed by the regulations of the OTS or these bylaws.

 

SECTION 8.  Action Without a Meeting.  Any action required or permitted to be taken by the board of directors at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all of the directors.

 

SECTION 9.  Resignation.  Any director may resign at any time by sending a written notice of such resignation to the home office of the savings bank addressed to the chairman of the board or one of the presidents.  Unless otherwise specified, such resignation shall take effect upon receipt by the chairman of the board or one of the presidents.  More than three consecutive absences from regular meetings of the board of directors, unless excused by resolution of the board of

 


 

directors, shall automatically constitute a resignation, effective when such resignation is accepted by the board of directors.

 

SECTION 10.  Vacancies.  Any vacancy on the board of directors may be filled by the affirmative vote of a majority of the remaining directors although less than a quorum of the board of directors.  A director elected to fill a vacancy shall be elected to serve until the next election of directors by the shareholders.  Any directorship to be filled by reason of an increase in the number of directors for may be filled by election by the board of directors for a term of office continuing only until the next election of directors by the shareholders.

 

SECTION 11.  Compensation.  Directors, as such, may receive a stated salary for their services.  By resolution of the board of directors, a reasonable fixed sum, and reasonable expenses of attendance, if any, may be allowed for attendance, whether in person or by telephone, at any regular or special meeting of the Board of directors.

 

Members of either standing or special committees may be allowed such compensation for attendance, whether in person or by telephone, at committee meetings as the Board of directors may determine from time to time.

 

SECTION 12.  Presumption of Assent.  A director of the savings bank who is present at a meeting of the board of directors at which action on any savings bank matter is taken shall be presumed to have assented to the action taken unless his dissent or abstention shall be entered into the minutes of the meeting or unless he shall file a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the savings bank within five days after the date a copy of the minutes of the meeting is received.  Such right to dissent shall not apply to a director who voted in favor of such action.

 

SECTION 13.  Removal of Directors.  At a meeting of shareholders called expressly for that purpose, any director may be removed for cause by a vote of the holders of a majority of the shares then entitled to vote at an election of directors.  If less than the entire board is to be removed, no one of the directors may be removed if the votes cast against the removal would be sufficient to elect a director if then cumulatively voted at an election of the class of directors of which such director is a part.  Whenever the holders of the shares of any class are entitled to elect one or more directors by the provisions of the charter or supplemental sections thereto, the provisions of this section shall apply, in respect to the removal of a director or directors so elected, to the vote of the holders of the outstanding shares of that class and not to the vote of the outstanding shares as a whole.

 

ARTICLE IV — EXECUTIVE AND OTHER COMMITTEES

 

SECTION 1.  Appointment.  The board of directors, by resolution adopted by a majority of the full board, may designate an executive committee.  The designation of any committee pursuant to this Article IV and the delegation of authority shall not operate to relieve the board of directors, or any director, of any responsibility imposed by law or regulation.

 


 

SECTION 2.  Authority.  The executive committee, when the board of directors is not in session, shall have and may exercise all of the authority of the board of directors except to the extent, if any, that such authority shall be limited by the resolution appointing the executive committee; and except also that the executive committee shall not have the authority of the board of directors with reference to:  the declaration of dividends; the amendment of the charter or bylaws of the savings bank, or recommending to the stockholders a plan of merger, consolidation or conversion; the sale, lease or other disposition of all or substantially all of the property and assets of the savings bank otherwise than in the usual and regular course of its business; a voluntary dissolution of the savings bank; a revocation of any of the foregoing; or the approval of a transaction in which any member of the executive committee, directly or indirectly, has any material beneficial interest.

 

SECTION 3.  Tenure.  Subject to the provisions of Section 8 of this Article IV, each member of the executive committee shall hold office until the next regular annual meeting of the board of directors following his or her designation and until a successor is designated as a member of the executive committee.

 

SECTION 4.  Meetings.  Regular meetings of the executive committee may be held without notice at such times and places as the executive committee may fix from time to time by resolution.  Special meetings of the executive committee may be called by any member thereof upon not less than one day’s notice stating the place, date, and hour of the meeting, which notice may be written or oral.  Any member of the executive committee may waive notice of any meeting and no notice of any meeting need be given to any member thereof who attends in person.  The notice of a meeting of the executive committee need not state the business proposed to be transacted at the meeting.

 

SECTION 5.  Quorum.  A majority of the members of the executive committee shall constitute a quorum for the transaction of business at any meeting thereof, and action of the Executive committee must be authorized by the affirmative vote of a majority of the members present at a meeting at which a quorum is present.

 

SECTION 6.  Action Without a Meeting.  Any action required or permitted to be taken by the executive committee at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the members of the executive committee.

 

SECTION 7.  Vacancies.  Any vacancy in the executive committee may be filled by a resolution adopted by a majority of the full board of directors.

 

SECTION 8.  Resignations and Removal.  Any member of the executive committee may be removed at any time with or without cause by a resolution adopted by a majority of the full board of directors.  Any member of the executive committee may resign from the executive committee at any time by giving written notice to the one of the presidents or secretary of the savings bank.  Unless otherwise specified, such resignation shall take effect upon its receipt; the acceptance of such resignation shall not be necessary to make it effective.

 

 

SECTION 9.  Procedure.  The executive committee shall elect a presiding officer from its members and may fix its own rules of procedure which shall not be inconsistent with these bylaws.  It shall keep regular minutes of its proceedings and report the same to the board of directors for its information at the meeting held next after the proceedings shall have occurred

 

SECTION 10.  Other Committees.  The board of directors may by resolution establish an audit, loan or other committee composed of directors as they may determine to be necessary or appropriate for the conduct of the business of the savings bank and may prescribe the duties, constitution, and procedures thereof.

 

ARTICLE V — OFFICERS

 

SECTION 1.  Positions.  The officers of this savings bank shall be one or more presidents, one or more vice presidents, a secretary and a treasurer, each of whom shall be elected by the board of directors.  The board of directors may also designate the chairman of the board as an officer.  One of the presidents shall be the chief executive officer, unless the board of directors designates the chairman of the board as chief executive officer.  The offices of secretary and treasurer may be held by the same person and a vice president may also be either the secretary or the treasurer.  The board of directors may designate one or more vice presidents as executive vice president or senior vice president.  The board of directors also may elect or authorize the appointment of such other officers as the business of this savings bank may require.  The officers shall have such authority and perform such duties as the board of directors may from time to time authorize or determine. In the absence of action by the board of directors, the officers shall have such powers and duties as generally pertain to their respective offices.

 

SECTION 2.  Election and Term of Office.  The officers of this savings bank shall be elected annually at the first meeting of the board of directors held after each annual meeting of the shareholders.  If the election of officers is not held at such meeting, such election shall be held as soon thereafter as possible.  Each officer shall hold office until a successor has been duly elected and qualified or until the officer’s death, resignation, or removal in the manner hereinafter provided. Election or appointment of an officer, employee, or agent shall not of itself create contractual rights.  The board of directors may authorize the savings bank to enter into an employment contract with any officer in accordance with regulations of the OTS; but no such contract shall impair the right of the board of directors to remove any officer at any time in accordance with Section 3 of this Article V.

 

SECTION 3.  Removal.  Any officer may be removed by the board of directors whenever in its judgment the best interests of the savings bank would be served thereby, but such removal, other than for cause, shall be without prejudice to the contractual rights, if any, of the person so removed.

 

SECTION 4.  Vacancies.  A vacancy in any office because of death, resignation, removal, disqualification, or otherwise may be filled by the board of directors for the unexpired portion of the term.

 

SECTION 5.  Remuneration.  The remuneration of the officers shall be fixed from time to time by the board of directors.

 


 

ARTICLE VI — CONTRACTS, LOANS, CHECKS AND DEPOSITS

 

SECTION 1.  Contracts.  To the extent permitted by regulations of the OTS, and except as otherwise prescribed by these bylaws with respect to certificates for shares, the board of directors may authorize any officer, employee or agent of the savings bank to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the savings bank.  Such authority may be general or confined to specific instances.

 

SECTION 2.  Loans.  No loans shall be contracted on behalf of the savings bank and no evidence of indebtedness shall be issued in its name unless authorized by the board of directors.  Such authority may be general or confined to specific instances.

 

SECTION 3.  Checks, Drafts, etc.  All checks, drafts or other orders for the payment of money, notes, or other evidences of indebtedness issued in the name of the savings bank shall be signed by one or more officers, employees or agents of the savings bank in such manner as shall from time to time be determined by the board of directors.

 

SECTION 4.  Deposits.  All funds of the savings bank not otherwise employed shall be deposited from time to time to the credit of the savings bank in any duly authorized depositories as the board of directors may select.

 

ARTICLE VII — CERTIFICATES FOR SHARES AND THEIR TRANSFER

 

SECTION 1.  Certificates for Shares.  Certificates representing shares of capital stock of the savings bank shall be in such form as shall be determined by the board of directors and approved by the OTS.  Such certificates shall be signed by the chief executive officer or by any other officer of the savings bank authorized by the board of directors, attested by the secretary or an assistant secretary, and sealed with the corporate seal or a facsimile thereof.  The signatures of such officers upon a certificate may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar other than the savings bank itself or one of its employees. Each certificate for shares of capital stock shall be consecutively numbered or otherwise identified.  The name and address of the person to whom the shares are issued, the number of shares and date of issue, shall be entered on the stock transfer books of the savings bank.  All certificates surrendered to the savings bank for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares has been surrendered and canceled, except that in the case of a lost or destroyed certificate, a new certificate may be issued upon such terms and indemnity to the savings bank as the board of directors may prescribe.

 

SECTION 2.  Transfer of Shares.  Transfer of shares of the capital stock of the savings bank shall be made only on its stock transfer books.  Authority for such transfer shall be given only by the holder of record or by his legal representative, who shall furnish proper evidence of such authority, or by his attorney authorized by a duly executed power of attorney and filed with the savings bank.  Such transfer shall be made only on surrender for cancellation of the certificate for

 


 

such shares.  The person in whose name shares of capital stock stand on the books of the savings bank shall be deemed by the savings bank to be the owner for all purposes.

 

ARTICLE VIII — FISCAL YEAR

 

The fiscal year of this savings bank shall end on the 31st day of December of each year.

 

ARTICLE IX — DIVIDENDS

 

Subject to the terms of the savings bank’s charter and the regulations and orders of the OTS, the board of directors may, from time to time, declare, and the savings bank may pay, dividends on its outstanding shares of capital stock.

 

ARTICLE X — CORPORATE SEAL

 

The board of directors shall approve a savings bank seal which shall be two concentric circles between which shall be the name of the savings bank.  The year of incorporation or an emblem may appear in the center.

 

ARTICLE XI — AMENDMENTS

 

These bylaws may be amended in a manner consistent with regulations of the OTS at any time by a majority of the full board of directors or by a majority vote of the votes cast by the stockholders of the savings bank at any legal meeting.

 


 

EXHIBIT 6

 

Section 321(b) Consent

 

Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust FSB hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.

 

 

 

WILMINGTON TRUST FSB

 

 

 

 

Dated: March 9, 2011

By:

/s/ Joseph P. O’Donnell

 

Name:

Joseph P. O’Donnell

 

Title:

Vice President

 


 

EXHIBIT 7

 

This form is intended to assist state nonmember banks and savings banks with state publication requirements.  It has not been approved by any state banking authorities.  Refer to your appropriate state banking authorities for your state publication requirements.

 

R E P O R T   O F   C O N D I T I O N

 

WILMINGTON TRUST FSB

of

BALTIMORE

 

Name of Bank

 

City

 

 

in the State of Maryland, at the close of business on December 31, 2010:

 

ASSETS

 

Thousands of Dollars

 

Cash, Deposits & Investment Securities:

 

828,435

 

Mortgage back Securities:

 

1,164

 

Mortgage Loans:

 

509,754

 

Non-Mortgage Loans:

 

453,513

 

Repossessed Assets:

 

3,978

 

Federal Home Loan Bank Stock:

 

6,119

 

Office Premises and Equipment:

 

16,297

 

Other Assets:

 

161,633

 

Total Assets:

 

1,980,893

 

 

LIABILITIES

 

Thousands of Dollars

 

Deposits

 

1,583,782

 

Escrows

 

578

 

Federal Funds Purchased and Securities Sold Under Agreements to Repurchase

 

15,007

 

Other Liabilities and Deferred Income:

 

123,409

 

Total Liabilities

 

1,722,776

 

 

EQUITY CAPITAL 

 

Thousands of Dollars

 

Common Stock

 

299,463

 

Unrealized Gains (Losses) on Certain Securities

 

26

 

Retained Earnings

 

(41,372

)

Other Components of Equity Capital

 

0

 

Total Equity Capital

 

258,117

 

Total Liabilities and Equity Capital

 

1,980,893

 

 


 EX-99.1 384 a2202241zex-99_1.htm EX-99.1
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Exhibit 99.1

        LETTER OF TRANSMITTAL

ClubCorp Club Operations, Inc.

OFFER TO EXCHANGE
Up to $415,000,000 principal amount of its 10% Senior Notes due 2018, which
have been registered under the Securities Act of 1933, as amended, for any and all of its
outstanding 10% Senior Notes due 2018

 
        THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M. (NEW YORK CITY TIME) ON                        , 2011 UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE. 

The Exchange Agent for the Exchange Offer is:

WILMINGTON TRUST FSB


By Mail, Hand or Overnight Delivery:
Wilmington Trust FSB
c/o Wilmington Trust Company
Corporate Capital Markets
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1626
 
By Facsimile:
(302) 636-4139
 For Information or Confirmation by Telephone:
Sam Hamed
(302) 636-6181

        DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.

        Holders of Outstanding Notes (as defined below) should complete this Letter of Transmittal either if Outstanding Notes are to be forwarded herewith or if tenders of Outstanding Notes are to be made by book-entry transfer to an account maintained by the Exchange Agent at The Depository Trust Company ("DTC"), as the book-entry transfer facility, pursuant to the procedures set forth in "The Exchange Offer—Procedures for Tendering Outstanding Notes" and "The Exchange Offer—Book-Entry Delivery Procedures" in the Prospectus (as defined below) and an "Agent's Message" (as defined below) is not delivered. If tender is being made by book-entry transfer, the holder must have an Agent's Message delivered in lieu of this Letter of Transmittal.

        Holders of Outstanding Notes whose certificates (the "Certificates") for such Outstanding Notes are not immediately available or who cannot deliver their Certificates and all other required documents to the Exchange Agent on or prior to the Expiration Date or who cannot complete the procedures for book-entry transfer on a timely basis, must tender their Outstanding Notes according to the guaranteed delivery procedures set forth in "The Exchange Offer—Guaranteed Delivery Procedures" in the Prospectus.

        As used in this Letter of Transmittal, the term "holder" with respect to the Exchange Offer (as defined below) means any person in whose name Outstanding Notes are registered on the books of ClubCorp Club Operations, Inc., a Delaware corporation (the "Company"), or, with respect to interests in the Outstanding Notes held by DTC, any DTC participant listed in an official DTC proxy. The undersigned has completed, signed and delivered this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer. Holders who wish to tender their Outstanding Notes must complete this Letter of Transmittal in its entirety.

SEE INSTRUCTION 1 BELOW. DELIVERY OF DOCUMENTS TO DTC DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
BENEFICIAL OWNERS OF OUTSTANDING NOTES SEE INSTRUCTION 10
(QUESTIONS AND REQUEST FOR ASSISTANCE OR ADDITIONAL COPIES).

1

        The undersigned hereby acknowledges receipt of the Prospectus dated                        , 2011 (as amended or supplemented from time to time, the "Prospectus") of the Company and certain of the Company's subsidiaries (collectively, the "Guarantors"), and this Letter of Transmittal, which together constitute the Company's offer (the "Exchange Offer") to exchange up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 issued by the Company that have been registered under the Securities Act of 1933, as amended (the "Securities Act") (the "Exchange Notes"), for any and all of the outstanding 10% Senior Notes due 2018 of the Company that were originally sold pursuant to a private offering (the "Outstanding Notes"). The Outstanding Notes are unconditionally guaranteed (the "Old Guarantees") by the Guarantors and the Exchange Notes will be unconditionally guaranteed (the "New Guarantees") by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and this Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Outstanding Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this Letter of Transmittal, unless the context otherwise requires and whether so expressed or not, references to the "Exchange Offer" include the Guarantors' offer to exchange the New Guarantees for the Old Guarantees, references to the "Exchange Notes" include the related New Guarantees and references to the "Outstanding Notes" include the related Old Guarantees.

        For each Outstanding Note accepted for exchange, the holder of such Outstanding Note will receive an Exchange Note having a principal amount equal to that of the surrendered Outstanding Note. The Exchange Notes will accrue interest at a rate of 10% per annum from November 30, 2010 or the most recent date on which interest has been paid on the Outstanding Notes until maturity, and interest will be payable semi-annually on June 1 and December 1 of each year, commencing on June 1, 2011.

        The Company reserves the right, in accordance with applicable law, at any time: (i) to delay the acceptance for exchange of any Outstanding Notes (only in the case that the Company amends or extends the Exchange Offer); (ii) to extend or terminate the Exchange Offer if the Company determines that any of the conditions to the Exchange Offer have not occurred or have not been satisfied by giving written notice of such delay, extension or termination to the Exchange Agent; (iii) to keep all Outstanding Notes tendered other than those Outstanding Notes properly withdrawn in the event of an extension of the Exchange Offer; and (iv) subject to the terms of the registration rights agreement, to amend the terms of the Exchange Offer in any manner. In the event of a material change in the Exchange Offer, including the waiver of a material condition, the Company will extend the offer period, if necessary, so that at least five business days remain in such offer period following notice of the material change. Any delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by written notice to the registered holders of the Outstanding Notes. If the Company amends the Exchange Offer in a manner that it determines to constitute a material change, it will promptly disclose the amendment in a manner reasonably calculated to inform the holders of applicable Outstanding Notes of that amendment. In the case of any extension, an announcement will be made no later than 9:00 a.m. (New York City time) on the next business day after the previously scheduled Expiration Date.

        Capitalized terms used but not defined herein have the meaning given to them in the Prospectus.

        YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT, WHOSE ADDRESS AND TELEPHONE NUMBER APPEAR ON THE FRONT PAGE OF THIS LETTER OF TRANSMITTAL.

        SEE INSTRUCTION 10 BELOW.

        The undersigned has completed the appropriate boxes below and signed this Letter of Transmittal to indicate the action that the undersigned desires to take with respect to the Exchange Offer.

PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW.

2

        List below the Outstanding Notes to which this Letter of Transmittal relates. If the space below is inadequate, the Certificate or registration numbers and principal amounts of Outstanding Notes should be listed on a separately signed schedule affixed hereto.


All Tendering Holders Complete Box 1:

 
Box 1 Description of Outstanding Notes Tendered Herewith
 
Name(s) and Address(es) of Registered Holder(s)
(Please fill in, if blank, exactly as name(s)
appear(s) on Certificate(s))
   Certificate or
Registration
Number(s) of
Outstanding Notes*
   Aggregate
Principal
Amount
Represented by
Outstanding Notes
   Aggregate
Principal
Amount of
Outstanding Notes
Being Tendered**
 
          
         
          
          
        Total        
 
  *   Need not be completed by book-entry holders (see below).
**   The minimum permitted tender is $2,000 in principal amount. All tenders must also be in integral multiples of $1,000 in principal amount. Unless otherwise indicated in this column, or delivered to the Exchange Agent herewith, the holder will be deemed to have tendered the full aggregate principal amount represented by such Outstanding Notes. See instruction 4 below.
 

Box 2
Book-Entry

o
CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:

Name of Tendering Institution:    

 

DTC Account Number:    

 

Transaction Code Number:    

        Holders of Outstanding Notes that are tendering by book-entry transfer to the Exchange Agent's account at DTC may execute the tender through DTC's Automated Tender Offer Program ("ATOP") for which the transaction will be eligible. DTC participants that are accepting the Exchange Offer must transmit their acceptances to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange Agent's account at DTC. DTC will then send a computer-generated message (an "Agent's Message") to the Exchange Agent for its acceptance in which the holder of the Outstanding Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal, and the DTC participant confirms on behalf of itself and the beneficial owners of such Outstanding Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal

3


to the Exchange Agent. Each DTC participant transmitting an acceptance of the Exchange Offer through the ATOP procedures will be deemed to have agreed to be bound by the terms of this Letter of Transmittal. Delivery of an Agent's Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agent's Message. DTC participants may also accept the Exchange Offer by submitting a Notice of Guaranteed Delivery through ATOP.

Box 3
Notice of Guaranteed Delivery
(See Instruction 2 below)

o
CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:

Name(s) of Registered Holder(s):    

 

Window Ticket Number (if any):    

 

Name of Eligible Guarantor Institution that Guaranteed Delivery:    

 

Date of Eligible Guarantor Execution of Notice of Guaranteed Delivery:    

 

IF GUARANTEED DELIVERY IS TO BE MADE BY BOOK-ENTRY TRANSFER:    

 

Name of Tendering Institution:    

 

DTC Account Number:    

 

Transaction Code Number:    

Box 4
Return of Non-Exchanged Outstanding Notes
Tendered by Book-Entry Transfer

o
CHECK HERE IF OUTSTANDING NOTES TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING NOTES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.

4

Box 5
Participating Broker-Dealer

o
CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OUTSTANDING NOTES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE TEN (10) ADDITIONAL COPIES OF THE PROSPECTUS AND OF ANY AMENDMENTS OR SUPPLEMENTS THERETO, AS WELL AS ANY NOTICES FROM THE COMPANY TO SUSPEND AND RESUME USE OF THE PROSPECTUS. PROVIDE THE NAME OF THE INDIVIDUAL WHO SHOULD RECEIVE, ON BEHALF OF THE HOLDER, ADDITIONAL COPIES OF THE PROSPECTUS, AND AMENDMENTS AND SUPPLEMENTS THERETO, AND ANY NOTICES TO SUSPEND AND RESUME USE OF THE PROSPECTUS.

Name:    

 

Address:    

 

Telephone No.:    

 

Facsimile No.:    

        If the undersigned is not a broker-dealer, the undersigned represents that it is not an "affiliate" within the meaning of Rule 405 of the Securities Act, it has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, it is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes and it is acquiring the Exchange Notes in the ordinary course of its business. If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Outstanding Notes, it represents that the Outstanding Notes to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that (i) it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act, and (ii) it has not entered into any arrangement or understanding with the Company or any of the Company's affiliates to distribute the Exchange Notes. A broker-dealer may not participate in the Exchange Offer with respect to Outstanding Notes acquired other than as a result of market-making activities or other trading activities. Any broker-dealer who purchased Outstanding Notes from the Company to resell pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act must comply with the registration and prospectus delivery requirements under the Securities Act.

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY

5

Ladies and Gentlemen:

        Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the aggregate principal amount of the Outstanding Notes indicated above. Subject to, and effective upon, the acceptance for exchange of all or any portion of the Outstanding Notes tendered herewith in accordance with the terms and conditions of the Exchange Offer (including, if the Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment), the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Outstanding Notes as are being tendered herewith.

        The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as agent of the Company, in connection with the Exchange Offer) with respect to the tendered Outstanding Notes, with full power of substitution and resubstitution (such power of attorney being deemed an irrevocable power coupled with an interest) to (1) deliver certificates representing such Outstanding Notes, or transfer ownership of such Outstanding Notes on the account books maintained by DTC, together, in each such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Company, (2) present and deliver such Outstanding Notes for transfer on the books of the Company and (3) receive all benefits or otherwise exercise all rights and incidents of beneficial ownership of such Outstanding Notes, all in accordance with the terms of the Exchange Offer.

        The undersigned hereby represents and warrants that (a) the undersigned has full power and authority to tender, exchange, assign and transfer the Outstanding Notes tendered hereby, (b) when such tendered Outstanding Notes are accepted for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and (c) the Outstanding Notes tendered for exchange are not subject to any adverse claims or proxies when the same are accepted by the Company. The undersigned hereby further represents that any Exchange Notes acquired in exchange for Outstanding Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such Exchange Notes, whether or not such person is the undersigned, that neither the holder of such Outstanding Notes nor any such other person is engaged in, or intends to engage in, a distribution of such Exchange Notes within the meaning of the Securities Act, or has an arrangement or understanding with any person to participate in the distribution of such Exchange Notes, and that neither the holder of such Outstanding Notes nor any such other person is an "affiliate," as such term is defined in Rule 405 under the Securities Act, of the Company or any Guarantor. If the undersigned is a person in the United Kingdom, the undersigned represents that its ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business.

        The undersigned also acknowledges that this Exchange Offer is being made based on the Company's understanding of an interpretation by the staff of the United States Securities and Exchange Commission (the "SEC") as set forth in no-action letters issued to third parties, including Morgan Stanley & Co. Incorporated (available June 5, 1991), Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993, or similar no-action letters, that the Exchange Notes issued in exchange for the Outstanding Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by each holder thereof (other than a broker-dealer who acquires such Exchange Notes directly from the Company for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act or any such holder that is an "affiliate" of the Company or the Guarantors within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such Exchange Notes are acquired in the ordinary course of such holder's business and such holder is not engaged in, and does not intend to engage in, a distribution of such Exchange Notes and has no arrangement or understanding with any person to

6


participate in the distribution of such Exchange Notes. If a holder of the Outstanding Notes is an affiliate of the Company or the Guarantors, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in, or intends to engage in, a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such holder (x) may not rely on the applicable interpretations of the staff of the SEC and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. If the undersigned is a broker-dealer that will receive the Exchange Notes for its own account in exchange for the Outstanding Notes, it represents that the Outstanding Notes to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.

        The undersigned will, upon request, sign and deliver any additional documents deemed by the Company or the Exchange Agent to be necessary or desirable to complete the exchange, assignment and transfer of the tendered Outstanding Notes. The undersigned further agrees that acceptance of any and all validly tendered Outstanding Notes by the Company and the issuance of Exchange Notes in exchange therefor shall constitute performance in full by the Company of its obligations under the Registration Rights Agreement, dated November 30, 2010, by and among the Company, the Guarantors and Citigroup Global Markets Inc. of the Outstanding Notes and that the Company shall have no further obligations or liabilities thereunder except as provided in Section 6 of such agreement. The undersigned will comply with its obligations under the registration rights agreement.

        The Exchange Offer is subject to certain conditions as set forth in "The Exchange Offer—Conditions to the Exchange Offer" in the Prospectus. The undersigned recognizes that as a result of these conditions (which may be waived, in whole or in part, by the Company), as more particularly set forth in the Prospectus, the Company may not be required to exchange any of the Outstanding Notes tendered hereby and, in such event, the Outstanding Notes not exchanged will be returned to the undersigned at the address shown above, promptly following the Expiration Date if any of the conditions set forth in "The Exchange Offer—Conditions to the Exchange Offer" occur.

        All authority conferred or agreed to be conferred in this Letter of Transmittal and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Tendered Outstanding Notes may be withdrawn at any time prior to the Expiration Date in accordance with the procedures set forth in the Prospectus.

        Unless otherwise indicated herein in the box entitled "Special Registration Instructions" (Box 6) below, please deliver the Exchange Notes (and, if applicable, substitute certificates representing the Outstanding Notes for any Outstanding Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of the Outstanding Notes, please credit the account indicated above maintained at DTC. Similarly, unless otherwise indicated in the box entitled "Special Delivery Instructions" (Box 7) below, please send the Exchange Notes (and, if applicable, substitute certificates representing the Outstanding Notes for any Outstanding Notes not exchanged) to the undersigned at the address shown above in the box entitled "Description of Outstanding Notes Tendered Herewith" (Box 1).

7

        THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OUTSTANDING NOTES TENDERED HEREWITH" (BOX 1) ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OUTSTANDING NOTES AS SET FORTH IN SUCH BOX.

    Box 6
    Special Registration Instructions
    (See Instructions 1, 5 and 6 below)

    To be completed ONLY if Certificates for the Outstanding Notes not tendered and/or certificates for the Exchange Notes are to be issued in the name of someone other than the registered holder(s) of the Outstanding Notes whose name(s) appear(s) above, or to such registered holder(s) at an address other than that shown above, or if the Outstanding Notes delivered by book-entry transfer that are not accepted for exchange are to be returned by credit to an account maintained by DTC other than the account indicated above.

 
    
Issue:   o Outstanding Notes not tendered to:
    o Exchange Notes to:

Name(s)
 
 
   
(Please Print or Type)

Address:
 
 
   
 

 
 
(Include Zip Code)

Daytime Area Code and Telephone Number.

 

Taxpayer Identification or Social Security Number
(See Substitute Form W-9)

 

o    Credit unexchanged Outstanding Notes            delivered by book-entry to the DTC account set forth below.

(DTC Account Number, if applicable)

    Box 7
    Special Delivery Instructions
    (See Instructions 1, 5 and 6 below)

    To be completed ONLY if Certificates for the Outstanding Notes not tendered and/or certificates for the Exchange Notes are to be issued in the name of someone other than the registered holder(s) of the Outstanding Notes whose name(s) appear(s) above, or to such registered holder(s) at an address other than that shown above.

 
    
Issue:   o Outstanding Notes not tendered to:
    o Exchange Notes to:

Name(s)
 
 
   
(Please Print or Type)

Address:
 
 
   
 

 
 
(Include Zip Code)

Daytime Area Code and Telephone Number.

 

Taxpayer Identification or Social Security Number

 

8

Box 8
PLEASE SIGN HERE
Tendering Holders Sign Here
In Addition, Complete Substitute Form W-9—See Box 9, or Complete and Provide any Other
Applicable Tax Form as Described in 'Important Tax Information' Below

Must be signed by the registered holder(s) (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Outstanding Notes) of the Outstanding Notes exactly as their names(s) appear(s) on the Outstanding Notes hereby tendered or by any person(s) authorized to become the registered holder(s) by properly completed bond powers or endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth the full title of such person. See Instruction 5 below.

Signature of registered holder(s) or
Authorized Signatory(ies):		                                                                                                                                                                                                                                                      

 

Date:    

 

Name(s):    
    (Please Type or Print)

 

Capacity (full title):    

 

Address:    
    (Including Zip Code)

 

Area Code and Telephone Number:    

 

Tax Identification or Social Security Number:    

SIGNATURE GUARANTEE
(If Required—See Instruction 5 Below)

Signature(s) Guaranteed by
an Eligible Guarantor Institution:		    
    (Authorized Signature)

 
(Title)

 
(Name and Firm)

 
(Address of Firm, include Zip Code)

 

Date:    

 

Area Code and Telephone Number:    

 

Tax Identification or Social Security Number:    

9

  
Box 9
PAYER'S NAME: ClubCorp Club Operations, Inc.
 

SUBSTITUTE
FORM W-9
Department of the Treasury
Internal Revenue Service
 
Part 1—Enter your TIN. For individuals, this is your social security number. For other entities, it is your employer identification number.
 
Social Security Number



 OR
   
 
    Part 2—If you are exempt from backup withholding, check here.

Exempt from backup withholding o		   Employer Identification
Number
   
 
Payer's Request for Taxpayer Identification Number (TIN)   Part 3
Certification—Under penalties of perjury, I certify that:

(1)    The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me), and

(2)    I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and

(3)    I am a U.S. person (including a U.S. resident alien).		   Part 3—
Awaiting TIN o
 
    CERTIFICATION INSTRUCTIONS—You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because of under-reporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out such item (2).
 
-->   The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding.
 
Name  
(First, middle, last; if joint names, list both and circle the name of the person or entity whose number you enter in)
 

Sign Here
 
 
 
 
 
    Date:


NOTE:
 
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF UP TO 28% OF ANY REPORTABLE PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.

 
 
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.

10

CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER

            I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of payment, 28% of all reportable payments made to me will be withheld.

SIGNATURE     
 		  DATE       

11

GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9

        Guidelines for Determining the Proper Identification Number for the Payee (You) to Give the Payer. —Social security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employee identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer. All "Section" references are to the Internal Revenue Code of 1986, as amended. "IRS" is the Internal Revenue Service

 
For this type of account:
   Give the Social Security number of—
   For this type of account:
   Give the Employee Identification number of—
 
1.   Individual   The individual   6.   Disregarded entity not owned by an individual   The owner

2.
 
Two or more individuals (joint account)
 
The actual owner of the account or, if combined funds, the first individual on the account(1)
 
7.
 
A valid trust, estate, or pension trust
 
The legal entity(4)

3.
 
Custodian account of a minor (Uniform Gift to Minors Act)
 
The minor(2)
 
8.
 
Corporate or LLC electing corporate status on Form 8832
 
The corporation

4.
 
a.
 
The usual revocable savings trust account (grantor is also trustee)
 
The grantor-trustee(1)
 
9.
 
Association, club, religious, charitable, educational, or other tax-exempt organization account
 
The organization

 
 
b.
 
So-called trust that is not a legal or valid trust under state law
 
The actual owner(1)
 
10.
 
Partnership or multi-member LLC
 
The partnership

5.
 
Sole proprietorship or disregarded entity not owned by an individual
 
The owner(3)
 
11.
 
A broker or registered nominee
 
The broker or nominee

 
 
 
 
 
 
 
 
12.
 
Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments
 
The public entity
(1)
List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person's number must be furnished.

(2)
Circle the minor's name and furnish the minor's social security number.

(3)
You must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or your employer identification number (if you have one).

(4)
List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)

Note:    If no name is circled when there is more than one name, the number will be considered to be that of the first name listed.

12


 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9

Obtaining a Number

If you do not have a taxpayer identification number or you do not know your number, obtain Form SS-5, Application for a Social Security Card, at the local Social Security Administration office, or Form SS-4, Application for Employer Identification Number, by calling 1 (800) TAX-FORM, and apply for a number.

Payees Exempt from Backup Withholding

Payees specifically exempted from withholding include:

    •
    An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7), if the account satisfies the requirements of Section 401(f)(2).

    •
    The United States or a state thereof, the District of Columbia, a possession of the United States, or a political subdivision or instrumentality of any one or more of the foregoing.

    •
    An international organization or any agency or instrumentality thereof.

    •
    A foreign government and any political subdivision, agency or instrumentality thereof.

Payees that may be exempt from backup withholding include:

    •
    A corporation.

    •
    A financial institution.

    •
    A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States.

    •
    A real estate investment trust.

    •
    A common trust fund operated by a bank under Section 584(a).

    •
    An entity registered at all times during the tax year under the Investment Company Act of 1940.

    •
    A middleman known in the investment community as a nominee or custodian.

    •
    A futures commission merchant registered with the Commodity Futures Trading Commission.

    •
    A foreign central bank of issue.

    •
    A trust exempt from tax under Section 664 or described in Section 4947.

Payments of dividends and patronage dividends generally exempt from backup withholding include:

    •
    Payments to nonresident aliens subject to withholding under Section 1441.

    •
    Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident alien partner.

    •
    Payments of patronage dividends not paid in money.

    •
    Payments made by certain foreign organizations.

    •
    Section 404(k) payments made by an ESOP.

Payment of interest generally exempt from backup withholding include:

    •
    Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and you have not provided your correct taxpayer identification number to the payer.

    •
    Payments described in Section 6049(b)(5) to nonresident aliens.

    •
    Payments on tax-free covenant bonds under Section 1451.

    •
    Payments made by certain foreign organizations.

    •
    Mortgage interest paid to you.

13

Certain payments, other than payments of interest, dividends, and patronage dividends, that are exempt from information reporting are also exempt from backup withholding, For details, see the regulations under Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N.

Exempt payees described above must file Form W-9 or a substitute Form W-9 to avoid possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE THE FORM, AND RETURN IT TO THE PAYER.

Privacy Act Notice.—Section 6109 requires you to provide your correct taxpayer identification number to payers, who must report the payments to the IRS. The IRS uses the number for identification purposes and may also provide this information to various government agencies for tax enforcement or litigation purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold up to 28% of taxable interest, dividends, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply.

Penalties

(1)    Failure to Furnish Taxpayer Identification Number.—If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.

(2)    Civil Penalty for False Information With Respect to Withholding.—If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.

(3)    Criminal Penalty for Falsifying Information.—Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.

FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE

14


 INSTRUCTIONS TO LETTER OF TRANSMITTAL FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER

General

        Please do not send Certificates for Outstanding Notes directly to the Company. Your Certificates for Outstanding Notes, together with your signed and completed Letter of Transmittal and any required supporting documents, should be mailed or otherwise delivered to the Exchange Agent at the address set forth on the first page hereof. The method of delivery of Certificates, this Letter of Transmittal and all other required documents is at your sole option and risk and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, or overnight or hand delivery service is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.

1.     Delivery of this Letter of Transmittal and Certificates.

        This Letter of Transmittal is to be completed by holders of Outstanding Notes (which term, for purposes of the Exchange Offer, includes any participant in DTC whose name appears on a security position listing as the holder of such Outstanding Notes) if either (a) Certificates for such Outstanding Notes are to be forwarded herewith or (b) tenders are to be made pursuant to the procedures for tender by book-entry transfer set forth in "The Exchange Offer—Book-Entry Delivery Procedures" in the Prospectus and an Agent's Message (as defined below) is not delivered. The term "Agent's Message" means a message, transmitted by DTC to, and received by, the Exchange Agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by, and makes the representations and warranties contained in, this Letter of Transmittal and that the Company may enforce this Letter of Transmittal against such participant. Certificates representing the tendered Outstanding Notes, or timely confirmation of a book-entry transfer of such Outstanding Notes into the Exchange Agent's account at DTC, as well as a properly completed and duly executed copy of this Letter of Transmittal, or a facsimile hereof (or, in the case of a book-entry transfer, an Agent's Message), a substitute Form W-9 and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein on or prior to the Expiration Date, or the tendering holder must comply with the guaranteed delivery procedures set forth below.

2.     Guaranteed Delivery Procedures.

        Holders who wish to tender their Outstanding Notes and (a) whose Outstanding Notes are not immediately available or (b) who cannot deliver their Outstanding Notes, this Letter of Transmittal and all other required documents to the Exchange Agent on or prior to the Expiration Date or (c) who cannot complete the procedures for delivery by book-entry transfer on a timely basis, may effect a tender by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in "The Exchange Offer—Guaranteed Delivery Procedures" in the Prospectus and by completing the box entitled "Notice of Guaranteed Delivery" (Box 3) above. Pursuant to these procedures, holders may tender their Outstanding Notes if: (i) the tender is made by or through an Eligible Guarantor Institution (as defined below); (ii) a properly completed and signed Notice of Guaranteed Delivery in the form provided with this Letter of Transmittal is delivered to the Exchange Agent on or before the Expiration Date (by facsimile transmission, mail or hand delivery), setting forth the name and address of the holder of Outstanding Notes, the registered number(s) of such Outstanding Notes and the amount of Outstanding Notes tendered, stating that the tender is being made thereby; and (iii) the Certificates or a confirmation of book-entry transfer and a properly completed and signed Letter of Transmittal is delivered to the Exchange Agent within three New York Stock Exchange trading days after the Expiration Date. The Notice of Guaranteed Delivery may be

15


delivered by hand, facsimile or mail to the Exchange Agent, and a guarantee by an Eligible Guarantor Institution must be included in the form described in the notice.

        Any holder who wishes to tender Outstanding Notes pursuant to the guaranteed delivery procedures described above must ensure that the Exchange Agent receives the Notice of Guaranteed Delivery relating to such Outstanding Notes prior to the Expiration Date. Failure to complete the guaranteed delivery procedures outlined above will not, of itself, affect the validity or effect a revocation of any Letter of Transmittal form properly completed and executed by a holder who attempted to use the guaranteed delivery procedures.

        The Company will not accept any alternative, conditional or contingent tenders. Each tendering holder of Outstanding Notes, by execution of a Letter of Transmittal (or facsimile thereof), waives any right to receive any notice of the acceptance of such tender.

    Guarantee of Signatures

        No signature guarantee on this Letter of Transmittal is required if:

    (i)
    this Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this document, shall include any participant in DTC whose name appears on a security position listing as the owner of the Outstanding Notes) of Outstanding Notes tendered herewith, unless such holder(s) has (have) completed either the box entitled "Special Registration Instructions" (Box 6) or "Special Delivery Instructions" (Box 7) above; or

    (ii)
    such Outstanding Notes are tendered for the account of a firm that is an Eligible Guarantor Institution.

        In all other cases, an Eligible Guarantor Institution must guarantee the signature(s) in Box 8 on this Letter of Transmittal. See Instruction 5 below.

    Inadequate Space

        If the space provided in the box entitled "Description of Outstanding Notes Tendered Herewith" (Box 1) is inadequate, the Certificate or registration number(s) and/or the principal amount of Outstanding Notes and any other required information should be listed on a separate, signed schedule and attached to this Letter of Transmittal.

3.     Beneficial Owner Instructions.

        Only a holder of Outstanding Notes (i.e., a person in whose name Outstanding Notes are registered on the books of the registrar or, with respect to interests in the Outstanding Notes held by DTC, a DTC participant listed in an official DTC proxy), or the legal representative or attorney-in-fact of a holder, may execute and deliver this Letter of Transmittal. Any beneficial owner of Outstanding Notes who wishes to accept the Exchange Offer must arrange promptly for the appropriate holder to execute and deliver this Letter of Transmittal on his or her behalf through the execution and delivery to the appropriate holder of the "Instructions to Registered Holder and/or DTC Participant from Beneficial Owner" form accompanying this Letter of Transmittal.

4.     Partial Tenders; Withdrawals.

        Tenders of Outstanding Notes will be accepted only in denominations of $2,000 and integral multiples of $1,000 in excess thereof. If less than the entire principal amount of Outstanding Notes evidenced by a submitted Certificate is tendered, the tendering holder(s) should fill in the aggregate principal amount tendered in the column entitled "Aggregate Principal Amount of Outstanding Notes Being Tendered" in Box 1 above. A newly issued Certificate for the principal amount of Outstanding

16


Notes submitted but not tendered will be sent to such holder as soon as practicable after the Expiration Date, unless otherwise provided in the appropriate box on this Letter of Transmittal. All Outstanding Notes delivered to the Exchange Agent will be deemed to have been tendered in full unless otherwise indicated.

        Outstanding Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date, after which tenders of Outstanding Notes are irrevocable. To be effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Exchange Agent at the address set forth on the first page hereof. Any such notice of withdrawal must (i) specify the name of the person having deposited the Outstanding Notes to be withdrawn (the "Depositor"), (ii) identify the Outstanding Notes to be withdrawn (including the registration number(s) and principal amount of such Outstanding Notes, or, in the case of Outstanding Notes transferred by book-entry transfer, the name and number of the account at DTC to be credited), (iii) be signed by the holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Trustee with respect to the Outstanding Notes register the transfer of such Outstanding Notes in the name of the person withdrawing the tender, (iv) specify the name in which any such Outstanding Notes are to be registered, if different from that of the Depositor and (v) include a statement that the Depositor is withdrawing its election to have such Outstanding Notes exchanged. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Outstanding Notes so withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offer and no Exchange Notes will be issued with respect thereto unless the Outstanding Notes so withdrawn are validly re-tendered. Any Outstanding Notes which have been tendered but which are not accepted for exchange for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Outstanding Notes tendered by book-entry transfer into the Exchange Agent's account at DTC pursuant to the book-entry transfer procedures described above, such Outstanding Notes will be credited to an account with DTC specified by the holder) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Outstanding Notes may be retendered by following one of the procedures set forth in "The Exchange Offer—Procedures for Tendering Outstanding Notes" in the Prospectus at any time prior to the Expiration Date.

        Neither the Company, any affiliates or assigns of the Company, the Exchange Agent nor any other person will be under any duty to give any notification of any irregularities in any notice of withdrawal or incur any liability for failure to give such notification (even if such notice is given to other persons).

5.     Signature on Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures.

        If this Letter of Transmittal is signed by the registered holder(s) of the Outstanding Notes tendered hereby, the signature must correspond exactly with the name(s) as written on the face of the Certificates without alteration, addition, enlargement or any change whatsoever. If this Letter of Transmittal is signed by a participant in DTC, the signature must correspond with the name as it appears on the security position listing as the owner of the Outstanding Notes.

        If any of the Outstanding Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.

        If a number of Outstanding Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal (or facsimiles thereof) as there are different registrations of Outstanding Notes.

        If this Letter of Transmittal is signed by the registered holder(s) of Outstanding Notes (which term, for the purposes described herein, shall include a participant in DTC whose name appears on a

17


security position listing as the owner of the Outstanding Notes) listed and tendered hereby, no endorsements of the tendered Outstanding Notes or separate written instruments of transfer or exchange are required. In any other case, the registered holder(s) (or acting holder(s)) must either properly endorse the Outstanding Notes or transmit properly completed bond powers with this Letter of Transmittal (in either case, executed exactly as the name(s) of the registered holder(s) appear(s) on the Outstanding Notes), with the signature on the Outstanding Notes or bond power guaranteed by an Eligible Guarantor Institution (except where the Outstanding Notes are tendered for the account of an Eligible Guarantor Institution).

        If this Letter of Transmittal, any Certificates, bond powers or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, in its sole discretion, must submit proper evidence satisfactory to the Company, of such persons' authority to so act.

        Endorsements on Certificates for the Outstanding Notes or signatures on bond powers required by this Instruction 5 must be guaranteed by a firm that is a member of the Security Transfer Agent Medallion Signature Program or by any other "Eligible Guarantor Institution" within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.

        Signatures on this Letter of Transmittal need not be guaranteed by an Eligible Guarantor Institution, provided the Outstanding Notes are tendered: (i) by a registered holder of the Outstanding Notes (which term, for purposes of the Exchange Offer, includes any participant in the DTC system whose name appears on a security position listing as the owner of such Outstanding Notes) tendered who has not completed the box entitled "Special Registration Instructions" (Box 6) or the box entitled "Special Delivery Instructions" (Box 7) on this Letter of Transmittal or (ii) for the account of an Eligible Guarantor Institution.

6.     Special Registration and Delivery Instructions.

        Tendering holders should indicate, in the applicable Box 6 or Box 7, the name and address in/to which the Exchange Notes and/or substitute certificates evidencing Outstanding Notes for principal amounts not tendered or not accepted for exchange are to be issued or sent, if different from the name(s) and address(es) of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification number or social security number of the person named must also be indicated and the tendering holder should complete the applicable box. A holder tendering the Outstanding Notes by book-entry transfer may request that the Outstanding Notes not exchanged be credited to such account maintained at DTC as such holder may designate hereof (See Box 4).

        If no instructions are given, the Exchange Notes (and any Outstanding Notes not tendered or not accepted) will be issued in the name of and sent to the holder signing this Letter of Transmittal or deposited into such holder's account at DTC.

7.     Transfer Taxes.

        The Company will pay all transfer taxes, if any, applicable to the transfer and exchange of Outstanding Notes to it or its order pursuant to the Exchange Offer. If, however, a transfer tax is imposed because Exchange Notes are delivered or issued in the name of a person other than the registered holder or if a transfer tax is imposed for any other reason other than the transfer and exchange of Outstanding Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other person) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption

18

therefrom is not submitted herewith, the amount of such transfer taxes will be billed to the tendering holder by the Exchange Agent.

        Except as provided in this Instruction 7, it will not be necessary for transfer tax stamps to be affixed to the Outstanding Notes listed in the Letter of Transmittal.

8.     Waiver of Conditions.

        The Company reserves the right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.

9.     Mutilated, Lost, Stolen or Destroyed Outstanding Notes.

        Any holder whose Outstanding Notes have been mutilated, lost, stolen or destroyed should promptly contact the Exchange Agent at the address set forth on the first page hereof for further instructions. The holder will then be instructed as to the steps that must be taken in order to replace the Certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen Certificate(s) have been completed.

10.   Questions and Request for Assistance or Additional Copies.

        Questions relating to the procedure for tendering as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number set forth on the first page hereof.

11.   Validity and Form; No Conditional Tenders; No Notice of Irregularities.

        All questions as to the validity, form, eligibility (including time of receipt), acceptance of tendered Outstanding Notes and withdrawal of tendered Outstanding Notes will be determined by the Company in its sole discretion, which determination will be final and binding. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders, by execution of this Letter of Transmittal, shall waive any right to receive notice of the acceptance of their Outstanding Notes for exchange. The Company also reserves the right, in its reasonable judgment, to waive any defects, irregularities or conditions of tender as to particular Outstanding Notes. The Company's interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Outstanding Notes must be cured within such time as the Company shall determine. Although the Company intends to notify holders of defects or irregularities with respect to tenders of Outstanding Notes, neither the Company, the Exchange Agent nor any other person is under any obligation to give such notice nor shall they incur any liability for failure to give such notification. Tenders of Outstanding Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Outstanding Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering holder as soon as practicable following the Expiration Date.

19


 IMPORTANT TAX INFORMATION

        Under U.S. federal income tax law, a holder tendering Outstanding Notes whose Outstanding Notes are accepted for exchange may be subject to backup withholding unless the holder provides either (i) such holder's correct taxpayer identification ("TIN") on the Substitute Form W-9 above, certifying (A) that the TIN provided on Substitute Form W-9 is correct (or that such holder of Outstanding Notes is awaiting a TIN), (B) that the holder of Outstanding Notes is not subject to backup withholding because (x) such holder of Outstanding Notes is exempt from backup withholding, (y) such holder of Outstanding Notes has not been notified by the Internal Revenue Service that he or she is subject to backup withholding as a result of a failure to report all interest or dividends or (z) the Internal Revenue Service has notified the holder of Outstanding Notes that he or she is no longer subject to backup withholding and (C) that the holder of Outstanding Notes is a U.S. person (including a U.S. resident alien); or (ii) an adequate basis for exemption from backup withholding. If such holder is an individual, the TIN is his or her social security number. If the Exchange Agent is not provided with the correct TIN, the holder may be subject to certain penalties imposed by the Internal Revenue Service and any reportable payments that are made to such holder may be subject to backup withholding (see below).

        Certain holders (including, among others, all corporations and certain foreign holders) are not subject to these backup withholding and reporting requirements. However, exempt holders of Outstanding Notes should indicate their exempt status on Substitute Form W-9. For example, a corporation should complete the Substitute Form W-9, providing its TIN and indicating that it is exempt from backup withholding. In order for a foreign holder to qualify as an exempt recipient, that holder must submit a statement, signed under penalty of perjury, attesting to that holder's exempt status (Form W-8BEN or other applicable Form W-8). Forms for such statements can be obtained from the Exchange Agent. Holders are urged to consult their own tax advisors to determine whether they are exempt from these backup withholding and reporting requirements.

        If backup withholding applies, the Exchange Agent is required to withhold 28% of any reportable payments to be made to the holder or other payee. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service provided the required information is furnished. The Exchange Agent cannot refund amounts withheld by reason of backup withholding.

        A holder who does not have a TIN may check the box in Part 3 of the Substitute Form W-9 if the surrendering holder of Outstanding Notes has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked, the holder of Outstanding Notes or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number in order to avoid backup withholding. Notwithstanding that the box in Part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Paying Agent will withhold 28% of all reportable payments made prior to the time a properly certified TIN is provided to the Paying Agent. The holder of Outstanding Notes is required to give to the Exchange Agent the TIN (e.g., social security number or employer identification number) of the record owner of the Outstanding Notes. If the Outstanding Notes are in more than one name or are not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report.

        IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER WITH OUTSTANDING NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.

20



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All Tendering Holders Complete Box 1
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
INSTRUCTIONS TO LETTER OF TRANSMITTAL FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
IMPORTANT TAX INFORMATION
 EX-99.2 385 a2202241zex-99_2.htm EX-99.2
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Exhibit 99.2


ClubCorp Club Operations, Inc.

OFFER TO EXCHANGE

Up to $415,000,000 principal amount of its 10% Senior Notes due 2018,
which have been registered under the Securities Act of 1933, as amended, for any and all of its outstanding 10% Senior Notes due 2018

, 2011

To Our Clients:

        Enclosed for your consideration is a Prospectus, dated                                    , 2011 (as amended or supplemented from time to time, the "Prospectus"), and a Letter of Transmittal (the "Letter of Transmittal"), relating to the offer by ClubCorp Club Operations, Inc. (the "Company") and certain subsidiaries of the Company (collectively, the "Guarantors"), to exchange (the "Exchange Offer") up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018, issued by the Company that have been registered under the Securities Act of 1933, as amended (the "Securities Act") (the "Exchange Notes"), for any and all of the outstanding 10% Senior Notes due 2018 of the Company that were originally sold pursuant to a private offering (the "Outstanding Notes"), upon the terms and subject to the conditions of the Prospectus and the Letter of Transmittal. The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding Notes for which they may be exchanged pursuant to the Exchange Offer, except that (i) the Exchange Notes are freely tradable, (ii) the Exchange Notes have been registered under the Securities Act, (iii) the Exchange Notes are not entitled to any registration rights that are applicable to the Outstanding Notes under the registration rights agreement and (iv) the provisions of the registration rights agreement that provide for payment of additional amounts upon a registration default are no longer applicable. The Outstanding Notes are unconditionally guaranteed (the "Old Guarantees") by the Guarantors, and the Exchange Notes will be unconditionally guaranteed (the "New Guarantees") by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Outstanding Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the "Exchange Offer" include the Guarantors' offer to exchange the New Guarantees for the Old Guarantees, references to the "Exchange Notes" include the related New Guarantees and references to the "Outstanding Notes" include the related Old Guarantees. The Company will accept for exchange any and all Outstanding Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.

        PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. (NEW YORK CITY TIME) ON                                    , 2011, UNLESS THE COMPANY EXTENDS THE EXCHANGE OFFER (THE "EXPIRATION DATE").

        The enclosed materials are being forwarded to you as the beneficial owner of Outstanding Notes held by us for your account but not registered in your name. A tender of such Outstanding Notes may only be made by us as the registered holder and pursuant to your instructions. Therefore, the Company urges beneficial owners of Outstanding Notes registered in the name of a broker, dealer, commercial bank, trust company or other nominee to contact such registered holder promptly if such beneficial owners wish to tender their Outstanding Notes in the Exchange Offer.

        Accordingly, we request instructions as to whether you wish to tender any or all such Outstanding Notes held by us for your account, pursuant to the terms and conditions set forth in the Prospectus and


Letter of Transmittal. If you wish to have us tender any or all of your Outstanding Notes, please so instruct us by completing, signing and returning to us the instruction form that appears below. We urge you to read the Prospectus and the Letter of Transmittal carefully before instructing us as to whether or not to tender your Outstanding Notes.

        Your instructions to us should be forwarded as promptly as possible in order to permit us to tender Outstanding Notes on your behalf in accordance with the provisions of the Exchange Offer. Tenders of Outstanding Notes may be withdrawn at any time prior to the Expiration Date.

        IF YOU WISH TO HAVE US TENDER ANY OR ALL OF YOUR OUTSTANDING NOTES, PLEASE SO INSTRUCT US BY COMPLETING, SIGNING AND RETURNING TO US THE INSTRUCTION FORM BELOW.

        The accompanying Letter of Transmittal is furnished to you for your information only and may not be used by you to tender Outstanding Notes held by us and registered in our name for your account or benefit.

        If we do not receive written instructions in accordance with the below and the procedures presented in the Prospectus and the Letter of Transmittal, we will not tender any of the Outstanding Notes in your account.

        We also request that you confirm that we may, on your behalf, make the representations contained in the Letter of Transmittal that are to be made with respect to you as the beneficial owner of the Outstanding Notes.

        PLEASE CAREFULLY REVIEW THE ENCLOSED MATERIAL AS YOU CONSIDER THE EXCHANGE OFFER.

2


 INSTRUCTIONS

        General:    If you are the beneficial owner of 10% Senior Notes due 2018, please read and follow the instructions under the heading "Instructions to Registered Holder and/or DTC Participant from Beneficial Owner" below.


Instructions to Registered Holder and/or DTC Participant from Beneficial Owner

        The undersigned beneficial owner acknowledges receipt of your letter and the accompanying Prospectus dated                                    , 2011 (as amended or supplemented from time to time, the "Prospectus"), and a Letter of Transmittal (the "Letter of Transmittal"), relating to the offer by ClubCorp Club Operations, Inc. (the "Company") and certain subsidiaries of the Company (collectively, the "Guarantors"), to exchange (the "Exchange Offer") up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 issued by the Company that have been registered under the Securities Act of 1933, as amended (the "Securities Act") (the "Exchange Notes"), for any and all of the outstanding 10% Senior Notes due 2018 of the Company that were originally sold pursuant to a private offering (the "Outstanding Notes"), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal. The Outstanding Notes are unconditionally guaranteed (the "Old Guarantees") by the Guarantors, and the Exchange Notes will be unconditionally guaranteed (the "New Guarantees") by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Outstanding Notes for which such Exchange Notes are issued in the Exchange Offer. Capitalized terms used but not defined herein have the meanings ascribed to them in the Prospectus and the Letter of Transmittal.

        This will instruct you, the registered holder, to tender the principal amount of the Outstanding Notes indicated below held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal.

Principal Amount of Outstanding Notes
Held For Account Holder(s) 		  Principal Amount of Outstanding Notes
To be Tendered*

 
 
 

 
 
 

 
 
 

 
 
 
*
Unless otherwise indicated, the entire principal amount of Outstanding Notes held for the account of the undersigned will be tendered.

        If the undersigned instructs you to tender the Outstanding Notes held by you for the account of the undersigned, it is understood that you are authorized (a) to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner of the Outstanding Notes, including but not limited to the representations that the undersigned (i) is not an "affiliate", as defined in Rule 405 under the Securities Act, of the Company or the Guarantors, (ii) is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes, (iii) is acquiring the Exchange Notes in the ordinary course of its business and (iv) is not a broker-dealer tendering Outstanding Notes acquired for its own account directly from the Company. If a holder of the Outstanding Notes is an affiliate of the Company or the Guarantors, is not acquiring the Exchange

3

Notes in the ordinary course of its business, is engaged in or intends to engage in a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such holder may not rely on the applicable interpretations of the staff of the Securities and Exchange Commission relating to exemptions from the registration and prospectus delivery requirements of the Securities Act and must comply with such requirements in connection with any secondary resale transaction.


SIGN HERE
Dated:     

Signature(s):
 
  

Print Name(s):
 
 

Address:
 
  
 (Please include Zip Code)


Telephone Number:
 
 
 (Please include Area Code)


Taxpayer Identification Number or Social Security Number:
 
  


My Account Number With You:
 
 

4



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ClubCorp Club Operations, Inc. OFFER TO EXCHANGE Up to $415,000,000 principal amount of its 10% Senior Notes due 2018, which have been registered under the Securities Act of 1933, as amended, for any and all of its outstanding 10% Senior Notes due 2018
INSTRUCTIONS
Instructions to Registered Holder and/or DTC Participant from Beneficial Owner
 EX-99.3 386 a2202241zex-99_3.htm EX-99.3
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Exhibit 99.3

        ClubCorp Club Operations, Inc.

OFFER TO EXCHANGE

Up to $415,000,000 principal amount of its 10% Senior Notes due 2018,
which have been registered under the Securities Act of 1933, as amended, for any
and all of its outstanding 10% Senior Notes due 2018

              , 2011

To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:

        As described in the enclosed Prospectus, dated                                    , 2011 (as amended or supplemented from time to time, the "Prospectus"), and Letter of Transmittal (the "Letter of Transmittal"), ClubCorp Club Operations, Inc. (the "Company") and certain subsidiaries of the Company (collectively, the "Guarantors"), are offering to exchange (the "Exchange Offer") up to $415,000,000 aggregate principal amount of 10% Senior Notes due 2018 issued by the Company that have been registered under the Securities Act of 1933, as amended (the "Securities Act") (the "Exchange Notes"), for any and all of the outstanding 10% Senior Notes due 2018 of the Company that were originally sold pursuant to a private offering (the "Outstanding Notes"), upon the terms and subject to the conditions of the Prospectus and the Letter of Transmittal. The terms of the Exchange Notes are substantially identical (including in principal amount, interest rate and maturity) to the terms of the Outstanding Notes for which they may be exchanged pursuant to the Exchange Offer, except that (i) the Exchange Notes are freely tradable, (ii) the Exchange Notes have been registered under the Securities Act, (iii) the Exchange Notes are not entitled to any registration rights that are applicable to the Outstanding Notes under the registration rights agreement and (iv) the provisions of the registration rights agreement that provide for payment of additional amounts upon a registration default are no longer applicable. The Outstanding Notes are unconditionally guaranteed (the "Old Guarantees") by the Guarantors, and the Exchange Notes will be unconditionally guaranteed (the "New Guarantees") by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Outstanding Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the "Exchange Offer" include the Guarantors' offer to exchange the New Guarantees for the Old Guarantees, references to the "Exchange Notes" include the related New Guarantees and references to the "Outstanding Notes" include the related Old Guarantees. The Company will accept for exchange any and all Outstanding Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.

        WE URGE YOU TO PROMPTLY CONTACT YOUR CLIENTS FOR WHOM YOU HOLD OUTSTANDING NOTES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE OR WHO HOLD OUTSTANDING NOTES REGISTERED IN THEIR OWN NAMES. PLEASE BRING THE EXCHANGE OFFER TO THEIR ATTENTION AS PROMPTLY AS POSSIBLE. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. (NEW YORK CITY TIME) ON                                     , 2011 UNLESS THE COMPANY EXTENDS THE EXCHANGE OFFER (THE "EXPIRATION DATE").

        Enclosed are copies of the following documents:

            1.     A form of letter, including a letter of instructions to a registered holder from a beneficial owner, which you may use to correspond with your clients for whose accounts you hold

    Outstanding Notes registered in your name or the name of your nominee, with space provided for obtaining the client's instructions regarding the Exchange Offer;

            2.     The Prospectus;

            3.     The Letter of Transmittal for your use in connection with the tender of Outstanding Notes and for the information of your clients, including a Substitute Form W-9 and Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (providing information relating to U.S. federal income tax backup withholding); and

            4.     A form of Notice of Guaranteed Delivery.

        Your prompt action is requested. Tendered Outstanding Notes may be withdrawn, subject to the procedures described in the Prospectus, at any time prior to 5:00 p.m. (New York City time) on the Expiration Date.

        To participate in the Exchange Offer, certificates for Outstanding Notes, together with a duly executed and properly completed Letter of Transmittal or facsimile thereof, or a timely confirmation of a book-entry transfer of such Outstanding Notes into the account of Wells Fargo Bank, National Association (the "Exchange Agent"), at The Depository Trust Company, with any required signature guarantees, and any other required documents, must be received by the Exchange Agent by the Expiration Date as indicated in the Prospectus and the Letter of Transmittal.

        The Company will not pay any fees or commissions to any broker or dealer or to any other persons (other than the Exchange Agent) in connection with the solicitation of tenders of the Outstanding Notes pursuant to the Exchange Offer. However, the Company will pay or cause to be paid any transfer taxes, if any, applicable to the tender of the Outstanding Notes to it or its order, except as otherwise provided in the Prospectus and Letter of Transmittal.

        If holders of the Outstanding Notes wish to tender, but it is impracticable for them to forward their Outstanding Notes prior to the Expiration Date or to comply with the book-entry transfer procedures on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus and in the Letter of Transmittal.

        Any inquiries you may have with respect to the Exchange Offer should be addressed to the Exchange Agent at its address and telephone number set forth in the enclosed Prospectus and Letter of Transmittal. Additional copies of the enclosed material may be obtained from the Exchange Agent.

    Very truly yours,

 
 
ClubCorp Club Operations, Inc.


        NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM IN CONNECTION WITH THE EXCHANGE OFFER, OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS EXPRESSLY CONTAINED THEREIN.

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 EX-99.4 387 a2202241zex-99_4.htm EX-99.4
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Exhibit 99.4

        ClubCorp Club Operations, Inc.

NOTICE OF GUARANTEED DELIVERY

OFFER TO EXCHANGE

Up to $415,000,000 principal amount of its 10% Senior Notes due 2018, which
have been registered under the Securities Act of 1933, as amended, for any
and all of its outstanding 10% Senior Notes due 2018

        This form, or one substantially equivalent hereto, must be used to accept the Exchange Offer made by ClubCorp Club Operations, Inc., a Delaware corporation (the "Company"), and certain subsidiaries of the Company (collectively, the "Guarantors"), pursuant to the Prospectus, dated                                    , 2011 (as amended or supplemented from time to time, the "Prospectus"), and the enclosed Letter of Transmittal (the "Letter of Transmittal") if the certificates for the Outstanding Notes are not immediately available or if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Exchange Agent prior to 5:00 p.m. (New York City time) on the Expiration Date of the Exchange Offer. Such form may be delivered or transmitted by facsimile transmission, mail or hand delivery to Wilmington Trust FSB (the "Exchange Agent") as set forth below. In addition, in order to utilize the guaranteed delivery procedures to tender the Outstanding Notes pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or facsimile thereof) must also be received by the Exchange Agent prior to 5:00 p.m. (New York City time) on the Expiration Date of the Exchange Offer. Capitalized terms not defined herein have the meanings ascribed to them in the Letter of Transmittal.

The Exchange Agent is:

WILMINGTON TRUST FSB

By Mail, Hand or Overnight Delivery:   By Facsimile:

Wilmington Trust FSB
c/o Wilmington Trust Company
Corporate Capital Markets
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1626
 
(302) 636-4139

 For Information or Confirmation by Telephone:

Sam Hamed
(302) 636-6181

        DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.

        This Notice of Guaranteed Delivery is not to be used to guarantee signatures. If a signature on a Letter of Transmittal is required to be guaranteed by an Eligible Guarantor Institution (as defined in the Prospectus), such signature guarantee must appear in the applicable space in Box 8 provided on the Letter of Transmittal for Guarantee of Signatures.

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.

Ladies and Gentlemen:

        Upon the terms and subject to the conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to the Company the principal amount of Outstanding Notes indicated below, pursuant to the guaranteed delivery procedures described in "The Exchange Offer—Guaranteed Delivery Procedures" section of the Prospectus.

Certificate Number(s) (if known) of Outstanding Notes
or Account Number at Book-Entry Transfer Facility
   Aggregate Principal
Amount
Represented by
Outstanding Notes
   Aggregate Principal Amount of
Outstanding Notes
Being Tendered
  
 		  
 		  
 		  
 		  
 		  
 		  


PLEASE COMPLETE AND SIGN

 
(Signature(s) of Record Holder(s))

 
(Please Type or Print Name(s) of Record Holder(s))

Dated:                          
Address:     
 (Zip Code)

 
(Daytime Area Code and Telephone No.)


o
 
Check this Box if the Outstanding Notes will be delivered by book-entry transfer to The Depository Trust Company.


Account Number:
 
 

THE ACCOMPANYING GUARANTEE MUST BE COMPLETED.

2

GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)

        The undersigned, a member of a recognized signature medallion program or an "eligible guarantor institution," as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), hereby (a) represents that the above person(s) "own(s)" the Outstanding Notes tendered hereby within the meaning of Rule 14e-4(b)(2) under the Exchange Act, (b) represents that the tender of those Outstanding Notes complies with Rule 14e-4 under the Exchange Act, and (c) guarantees to deliver to the Exchange Agent, at its address set forth in the Notice of Guaranteed Delivery, the certificates representing all tendered Outstanding Notes, in proper form for transfer, or a book-entry confirmation (a confirmation of a book-entry transfer of the Outstanding Notes into the Exchange Agent's account at The Depository Trust Company), together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, and any other documents required by the Letter of Transmittal within three (3) New York Stock Exchange trading days after the Expiration Date.


Name of Firm:
 
 

(Authorized Signature)


Address:
 
 

(Zip Code)


Area Code and Telephone No.:
 
 


Name:
 
 

(Please Type or Print)


Title:
 
 

Dated:
 
  

NOTE: DO NOT SEND OUTSTANDING NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. OUTSTANDING NOTES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.

3


 INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY

1.     Delivery of this Notice of Guaranteed Delivery.

        A properly completed and duly executed copy of this Notice of Guaranteed Delivery and any other documents required by this Notice of Guaranteed Delivery must be received by the Exchange Agent at its address set forth on the cover page hereof prior to the Expiration Date of the Exchange Offer. The method of delivery of this Notice of Guaranteed Delivery and any other required documents to the Exchange Agent is at the election and risk of the holders and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. Instead of delivery by mail, it is recommended that holders use an overnight or hand delivery service, properly insured. In all cases sufficient time should be allowed to assure timely delivery. For a description of the guaranteed delivery procedures, see Instruction 2 of the Letter of Transmittal. No Notice of Guaranteed Delivery should be sent to the Company.

2.     Signatures on this Notice of Guaranteed Delivery.

        If this Notice of Guaranteed Delivery is signed by the registered holder(s) of the Outstanding Notes referred to herein, the signatures must correspond with the name(s) written on the face of the Outstanding Notes without alteration, addition, enlargement, or any change whatsoever.

        If this Notice of Guaranteed Delivery is signed by a person other than the registered holder(s) of any Outstanding Notes listed, this Notice of Guaranteed Delivery must be accompanied by appropriate bond powers, signed as the name of the registered holder(s) appear(s) on the Outstanding Notes without alteration, addition, enlargement, or any change whatsoever. If this Notice of Guaranteed Delivery is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or other person acting in a fiduciary or representative capacity, such person should so indicate when signing and, unless waived by the Company, evidence satisfactory to the Company of their authority so to act must be submitted with this Notice of Guaranteed Delivery.

3.     Questions and Requests for Assistance or Additional Copies.

        Questions and requests for assistance and requests for additional copies of the Prospectus may be directed to the Exchange Agent at the address set forth on the cover hereof. Holders may also contact their broker, dealer, commercial bank, trust company, or other nominee for assistance concerning the Exchange Offer.

4



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INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
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